Australia: Are You Exposing Your Employees To Unnecessary Risk

The recent District Court decision of White v Calstores Pty Ltd [2006] QDC 161 provides an interesting insight into how the courts view an employer’s obligation to ensure that their employees are not exposed to unreasonable risks.

White was employed by Calstores Pty Ltd as a service station console operator and was the victim of an armed robbery. The plaintiff argued her employer had breached the duty imposed by the Workplace Health and Safety Act 1995 (Qld) to provide a safe and secure work place. The claim argued before Tutt DCJ, based mainly on post traumatic stress disorder, was successful. Damages of $109,502.25 were awarded, including payments for general damages, and past and future economic loss.

Although the case is currently being appealed, and may ultimately be overturned, it provides a message of caution to some employers. This update outlines the key issues being investigated in the case.

Under common law every employer owes a duty to ensure that reasonable care is taken to avoid exposing their employees to an unnecessary risk of injury. To succeed, a plaintiff must show that the employer unreasonably failed to take measures or adopt means, reasonably open to them under the circumstances, which would have protected the employee from the dangers of their task.

Therefore, the extent of the duty will be determined by the individual circumstances of the employment relationship. The general assumption is that the higher the risk an employee faces, the higher the duty of care the courts will impose. The claim in this case was based on the employer’s failure to provide the employee with a safe place of work and safe system of work and a breach of s 28(1) of the Workplace Health and Safety Act 1995 (Qld). However, Tutt DCJ did not make a distinction between the duty imposed under statute and the duty at common law.

The common law duty of care owed by an employer to an employee may be summarised as a duty ‘to take reasonable care to avoid exposing the employee to unnecessary risk of injury’.

The employee was working as a console operator at a service station at night. Whilst she had received various forms of training, the facts showed that the plaintiff had not completed the armed robbery module. She had, however, been provided with a copy of the station’s security manual during training.

As a console operator, the employee had access to a button that would automatically lock or open the door to the station so that customers could enter and exit. The general practice involved employees leaving the door unlocked during the day but locking it at night when business was slow so that entry to the station could be controlled.

The evidence in this instance showed that multiple employees over the proceeding period had alerted the station manager that the locking mechanism for the door did not always work. Although technicians had serviced the door, the court was unable to conclude whether the doors were unlocked when the robbery occurred because of a fault in the system or because the employee failed to lock them.

However, this was not a determinative factor for the court as Tutt DCJ considered that the employer had breached its duty because ‘when it required the plaintiff to work alone in the shop premises at night it should have provided her with the assistance of a security guard to police and/or secure the premises during the night shift at which time there was a foreseeable risk of injury to the plaintiff from the type of occurrence which in fact occurred’.

Whilst this is a District Court decision and subject to an appeal lodged at the end of June 2006, there are certainly lessons an employer should draw from the case. It is essential that all employees receive proper training in the safety procedures of their workplace and that employers keep clear records of such training. It is also useful to regularly review the various activities of employees to ensure that proper safety practices are being followed and that these practices are suitable.

Interpreting this decision as a requirement that all service stations and similar businesses must provide night staff with armed security (regardless of the specific requirements of each) may be going too far, but it should at least act as a reminder to employers to ensure that the safety of their staff is a primary concern.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.