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Court rejects argument that alternative system of work uncommercial

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 83, 28 June 2005

The NSW Court of Appeal recently rejected an employer’s argument that engaging another person to protect against risk to employees was commercially unrealistic.

AFS Catering Pty Ltd (AFS) provided catering services to an army barracks. As part of these services, AFS had two employees responsible for filling the dishwashers and cleaning up. During meal periods, neither employee had time to attend to spillages - which were frequent. Instead spillages were dealt with after each meal time, as part of a thorough clean of the dining area. During one meal time one of the employees slipped on a margarine spill and injured herself.

The trial judge found that: the risk of injury from spillage was reasonably foreseeable; AFS could have avoided the risk by reasonably practicable measures - one being the appointment of a person responsible for spillages during meal times; and AFS should have taken into account, in devising a system of work, the possibility of inadvertent and negligent conduct on the part of its employees.

AFS appealed. It argued that the system of work was reasonable in the circumstances and that the alternative system proposed (the engagement of another person with responsibility for spillages) had a “sense of unreality (particularly in the commercial world)”.

The Court of Appeal held that if there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.

It found that AFS had failed to do this. It also found that employers have to go to the expense of engaging a person reasonably necessary for a safe workplace.

HR Tips

• An employer’s duty of care cannot be delegated.
• Employers must take into account the possibility of thoughtless or careless conduct on the part of employees in devising a safe system of work.
• Systems of work must allow enough time for employees to address risks.
• Employers must engage persons reasonably necessary for a safe workplace.

Jason Donnelly
Senior Associate
Australian Business Lawyers