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At the time he was shot three times by a co-worker in December 2001, Mr Pavkovic was an employee of Gittani Stone and had worked for his employer for almost three years. Mr Pavkovic’s injuries were not fatal and he survived to pursue a negligence action against Gittani Stone. Mr Pavokic argued that the employer had been negligent in failing to take early and prompt disciplinary action at the time when the co-worker began to exhibit aggressive and belligerent behaviour in the workplace. In a decision in December 2007, the New South Wales Court of Appeal found that the employer had acted negligently and had failed in its duty of care towards Mr Pavkovic (Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355).
The case illustrates that workplace hazard can arise from the behaviours of people in the workplace towards each other. The court heard that the aggressive worker had sworn and acted in a belligerent and intimidating manner towards co-workers. On several occasions, he had provoked fights. Nearly 18 months before the shooting, the aggressive worker punched Mr Pavkovic. Mr Pavkovic considered reporting the assault to the police, but was persuaded by the employer not to do so. Despite being aware of the assault, the employer did not take any meaningful disciplinary action. Tensions within the workplace continued and on 14 December 2001, the aggressive worker shot Mr Pavkovic three times in the street outside the work premises.
From the time that he punched Mr Pavkovic, the aggressive worker became a foreseeable danger to other employees. This meant that the shooting injury suffered by Mr Pavkovic was foreseeable. The court considered that the employer should have taken disciplinary action after the first occasion of violence. Disciplinary action such as warning, counselling or even termination would have dealt with the risk. Majority of the court found the employer negligent in failing to terminate the worker’s employment after the first assault. By failing to respond appropriately, the employer breached its duty of care.
Effective risk management dictates that aggressive and belligerent behaviour should not be ignored. For employers in New South Wales, there is an express requirement under health and safety regulation to take reasonable care to identify the potential for workplace violence.
Employers should not tolerate or condone unacceptable conduct, particularly violence.
John Stanton
Partner
Phone: (612) 9458 7555
Fax: (612) 9954 5029
