“Don’t forget the public” – breadth of non-worker WHS duty

Ben Urry, Associate Director

When reviewing health and safety practices, businesses need to adopt a long-term view of the potential impact on non-workers. A business should not assume that their obligation to protect customers, visitors or members of the public is limited only to the particular point in time when the work was actually being undertaken.

Risks to health and safety may not manifest for days, weeks or even months after the work is performed, and if the work has the requisite causal connection to the creation of the risk, then a business may be exposed to criminally liability.

In a recent decision handed down by the Industrial Relations Court of South Australia, it was held that work, health and safety (“WHS”) provisions in the Work Health and Safety Act 2012 (SA) in relation to a “non-worker” (including the public at large) were not limited to risks in the workplace at the time the work was being undertaken.

In September 2014 a young girl was killed at the Royal Adelaide Show when she was thrown from an amusement ride. The ride had been certified as safe to use (by Safe is Safe Pty Ltd) 12 days prior to the accident.

Safe is Safe and its officer, Mr Hamish Munro (the “Defendants”), were subsequently charged under the Work Health and Safety Act 2012 (SA). The Defendants argued that the obligation to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk only existed while the work was being carried out (ie the period in which the inspection and issuing of the certificate occurred) and did not extend to the consequences or product of the work.

In rejecting these arguments, the Court held that it was the creation of the risk that constituted the offence, with the “risk” in this context simply meaning the possibility of the health and safety of the nominated class of persons being compromised.

The case is a timely reminder to businesses that the mere passage of time since the work was undertaken does not lessen the possibility of liability for any risks created.

“Not just in the mind” – WHS covers risks to mental health

Ben Urry, Associate Director

The traditional understanding of work health and safety ("WHS") is predominantly centred on the risk of physical injuries. Most cases that are reported, and most of the news headlines, focus on physical injuries or fatalities in “high risk” industries such as transport, construction, agriculture and manufacturing. The problem with this focus is it neglects a significant aspect of WHS that is on the rise, namely risks to psychological health or “mental wellbeing”. 

Two recent developments in Western Australia and Victoria attempt to “balance” this focus:

  • In Western Australia the risk of suicide and its management in the workplace lead the Western Australian Department of Mines and Petroleum to release a Bulletin last month dealing with suicide awareness in the resources sector ("Bulletin"). The Bulletin provides guidance on risk factors and methods for dealing with the risk of suicide in the workplace.
  • In Victoria WorkSafe Vic, in conjunction with the Department of Health and Human Services, announced a $50 million initiative called “WorkHealth” that will be launched in early 2018. WorkHealth is an online portal that provides strategies and guidance to Victorian employers in relation to improving mental health in the workplace, including self-assessments and the ability to link with similar businesses online. A link to the portal can be found here.

What is the risk?

Statistics from both the WorkHealth Initiative and Bulletin highlight just how extensive mental health issues in the community are, and why businesses should make improving the mental health of their workers a priority:

  • Around 20% of Victorians experience mental health concerns.
  • Non-high risk industries are often more affected. For example, creative industry workers in Victoria suffer the highest levels of depression and twice the number of suicide attempts as the general population.
  • As set out in the Bulletin, ABS statistics for 2015 indicated that suicide was the 13th leading cause of death, resulting in the loss of 3,027 lives. It was the leading cause of death among the 15-44 year age group.
  • Past survey data reveals that each year approximately 370,000 Australians think about ending their lives, with 65,000 suicide attempts.

Risks to mental health in the workplace might include such things as:

  • Workplace bullying, harassment or discrimination;
  • Restructures and redundancies, especially if handled poorly and creating ongoing uncertainty regarding job security;
  • Performance management and discipline processes that are not structured or implemented appropriately;
  • Interpersonal conflict between colleagues that does not necessarily amount to bullying but may involve strong differences of opinion or criticisms of personal beliefs or habits;
  • Excessive hours leading to fatigue, as tiredness can reduce emotional strength and resilience; and
  • Return to work processes following injury. This includes being kept away from work unnecessarily as for some people keeping occupied assists with mental health.

Risk and hazard assessments should include an analysis of risks to worker mental health, and the actions that are required to eliminate or minimise these risks. 

Psychological risk specific example – suicide

In the Bulletin a range of warning signs were identified as possible red flags for suicide risks in the workplace. These factors can be used as a guide (as they are non-exhaustive) and woven into risk and hazards assessments:

  • “Being withdrawn and unable to relate to co-workers;
  • Talking about feeling isolated and lonely;
  • Expressing fears of failure, uselessness, helplessness, hopelessness or loss of self-esteem;
  • Impulsivity or aggression;
  • Dramatic changes in mood;
  • Fragmented sleep or obvious tiredness;
  • Dwelling on problems with seemingly no solutions;
  • Speaking about tidying up affairs;
  • Threatening to hurt or kill themselves;
  • Talking or writing about death, dying or suicide;
  • Expressing no reason for living or sense of purpose.”

Dealing with risk of work-related suicides

In order to eliminate or minimise the risk, the Bulletin suggests that businesses should contemplate implementing health/wellbeing policies, providing access to employee assistance programs or other counselling, restricting access to possible means of suicide such as medications, pesticides and chemicals, and implementing appropriate training programs that incorporate elements of suicide prevention (for example, in conjunction with bullying/harassment training).

Lifeline 131 114

Beyondblue 1300 224 636

MensLine 1300 789 978

WHS incidents in the workplace: reducing the fallout

Ben Urry, Associate Director

Even where an organisation has implemented “best practice” procedures and training with respect to work health and safety (“WHS”), things can and do go wrong. Where a WHS incident occurs, the important thing for an organisation is how it responds to the incident. Responding in an appropriate and timely fashion can make a significant difference to the level of liability and exposure for an organisation as well as for individual workers, managers and officers who may be involved in the incident.

A common complaint raised by organisations with respect to WHS is that it is “too hard”, “too complex” or “too expensive” to comply. While a proactive and preventive approach (including policies, procedures and training) is the best way to reduce the overall risks to WHS, in the event that an incident occurs, an organisation needs a strategy to frame how it will react. A thorough understanding of the parameters of the obligation to notify a health and safety regulator (“Regulator”), when it may be necessary to seek legal advice, and the rights and obligations of duty holders and the Regulator, can make a considerable impact on the outcome.

Uncertainty over incident management: statistically speaking

In a report published by SafeWork Australia in August 2016 titled “Perceived Levels of Management Safety Empowerment and Justice Among Australian Employers”, small to large businesses were surveyed as to how well they believed they managed WHS. These statistics reveal that, especially among small businesses (which make up over 90% of all Australian businesses), incident management and reporting still has a long way to go. By way of example:

  • 45% of small businesses (having less than 19 employees) do not collect accurate information from incident investigations;
  • approximately 32% of small businesses look for someone to blame rather than the underlying causes when investigating an incident;
  • businesses with young workers tended to be more safety conscious than other businesses; and
  • 10% of businesses in the manufacturing, transport, postal and warehousing industries indicated that fear of negative consequences discourages workers reporting incidents.

It is crucial for businesses of all sizes to understand the basics of incident management.

What is notifiable?

So what if someone is injured or falls ill? Should you be informing the Regulator each time someone gets a paper cut or only where there is a fatality? How soon should you tell the Regulator? Given that the Regulator is often the authority that can bring WHS prosecutions against organisations and individuals, care should be taken in meeting your notification obligations. In jurisdictions which have adopted the model WHS laws (being all States and Territories other than Victoria and Western Australia), it is a requirement that the Regulator be notified immediately if it constitutes a “notifiable incident”. But what does this mean exactly? A “notifiable” incident is defined to include a death, serious illness/injury or dangerous incident.1

A serious illness/injury includes:

  • immediate treatment as an in-patient in hospital;
  • immediate treatment for:
    • amputation;
    • serious head/eye injury, burn or lacerations;
    • separation of skin from underlying tissue (e.g. scalping or degloving);
    • spinal injury;
    • loss of a bodily function;
  • medical treatment within 48 hours of exposure to a substance; and
  • anything prescribed by the Regulations (for example, in NSW this includes such things as infections associated with blood- borne illnesses and occupational zoonoses such as Q-fever or Hendra Virus).2

 

A dangerous incident includes:

  • an uncontrolled:
    • escape, spillage or leakage of a substance;
    • implosion, explosion or fire;
    • escape of gas, steam or a pressurised substance;
  • electric shock;
  • fall or release from height of any plant, substance or thing;
  • collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use under the Regulations;
  • collapse or partial collapse of a structure;
  • collapse or failure of an excavation or of any shoring supports;
  • inrush of water, mud or gas in workings, in an underground excavation or tunnel; and
  • interruption of the main system of ventilation in an underground excavation or tunnel.

While the above definitions appear comprehensive, it can be difficult at times for organisations to determine whether a particular incident falls into one of those categories. For example, if a worker suffers a serious strain or sprain to their foot after colliding with a forklift and is treated at hospital on the same day in an emergency department, does this require notification? The standard reaction of most organisations would be “yes as hospital treatment was involved”, but it is possible to be treated in hospital as an outpatient and not an inpatient. Outpatient treatment for such an injury is not subject to the requirement to notify. Where in doubt external legal advice should be sought as soon as possible to ensure appropriate compliance with the notification requirement.

When an incident occurs, regardless of whether it is notifiable or not, an organisation should conduct an investigation (formal or informal) to determine how to rectify the situation, if at all possible, to avoid further risks to health and safety.

Internal investigations and privilege

Incident investigation is not simply a matter of nominating a person within the organisation to conduct the investigation. Rushing off and investigating a matter without taking time to plan and develop a strategy can increase exposure to liability, especially in circumstances where the incident may be one which could lead to an investigation or prosecution by a Regulator.

One of the biggest issues we see with organisations in this position is failure to consider whether privilege applies.

Legal professional privilege (now referred to as client legal privilege) provides protection for confidential communications between a lawyer and their client where these might otherwise be required to be produced in court or similar proceedings. The key to such privilege is that the dominant purpose of the communication must be for obtaining legal advice or preparing and/or conducting litigation. Speaking to your external legal advisors as soon as possible after an incident occurs and before speaking to the Regulator can assist in determining whether a formal approach covered by privilege is warranted. Importantly, care should be taken when relying on in-house counsel, as the fact that these individuals “wear two hats”, being a commercial and legal one, may result in the privilege being waived.3

A common mistake many organisations make is partially or even fully completing their investigation before speaking to their external legal advisors. An investigation report can contain findings about what the organisation has done wrong and may attribute responsibility for certain failings within the organisation, giving the Regulator a useful outline of possible breaches for its investigation and/or prosecution. As a matter of best practice we recommend taking the time to make contact with your external legal advisors before investigating or notifying the Regulator.

Regulator response: know your rights, but also know theirs

So either through notification or through other means (for example, reporting by a workers’ compensation insurer), the Regulator becomes aware of issues within your organisation. Now what?

The two main functions of the Regulator are to monitor and enforce compliance with WHS legislation and to provide advice and information on WHS to duty holders and the community generally.


The powers of WHS Inspectors are broad and far-reaching. These powers include, without limitation, the ability to:4

  • inspect, examine and make inquiries at the workplace; and
  • bring their own equipment, take measurements, conduct tests and make sketches or recordings (e.g. film, audio, photographs). 

More specifically, upon entering a workplace Inspectors can require a person to:

  • provide details on the whereabouts of a document;
  • produce the document if they have access or control of it; and
  • answer questions put by the Inspector.

Importantly, at least in “harmonised” jurisdictions there are provisions dealing with self-incrimination. Typically, in ordinary criminal matters an individual is not compelled to answer any questions or provide information which may tend to incriminate him or her. Such protection does not apply in WHS matters (other than in South Australia) as individuals are compelled to answer, subject to privilege. At no stage, absent a Court order, should privileged materials be shown or otherwise provided to an Inspector.

The trade-off for the loss of this right is, although a person must provide non-privileged incriminating evidence if asked, such evidence cannot be used against that person in criminal or civil proceedings (unless the evidence provided is misleading or fraudulent). “The catch?” The protection only applies where the information is provided to an Inspector when he or she is exercising their powers under legislation, and not where the information is provided voluntarily.

While cooperating with the Regulator as much as possible is the correct basis for approaching incident management, this cooperation should occur in a context where the Regulator complies with its obligations at law, including allowing legal representation and providing a statutory caution before requiring answers to be provided. This caution should refer to the provisions regarding self-incrimination and the protection afforded by client legal privilege. If the caution is not provided, or individuals are uncertain about whether it is necessary, there is no restriction on seeking a short break to obtain legal advice before embarking on answering questions or providing documents.

Key Takeaways

  1. Notify a notifiable incident. If in doubt, seek legal assistance from your external legal advisors.
  2. Speak to external legal advisors as soon as an incident occurs to determine the best approach to an investigation and privilege.
  3. Understand that the Regulator is never really “off the record” when conducting an investigation and avoid giving opinions or speculation – stick to the facts.
  4. Remember to obtain the caution and respond only to the specific question(s) asked.
  5. Check the applicable local laws – States and Territories do have subtle variations.

1. See for example section 35 Work Health and Safety Act 2011 (NSW).

2. For assistance see SafeWork Australia’s “Incident Notification Information Sheet”

3. See for example Victorian WorkCover Authority v Asahi Beverages Australia Pty Ltd (Ruling) [2014] VCC 1260

4. See for example Part 9 Work Health and Safety Act 2011 (NSW)

​Dual manslaughter charge for health and safety incident

Benjamin Urry, Associate Director

You may be aware of recent reports of a serious incident that occurred last month in which two construction workers were killed, and which has resulted in their supervisor being charged with two counts of manslaughter.

This incident highlights that businesses, including directors and supervisors, need to be aware that safety incidents can result not only in payments of compensation for victims, but can also result in breaches of health and safety laws (carrying significant financial penalties) or even criminal manslaughter charges with lengthy imprisonment terms.

Fatalities at Eagle Farm Racecourse

On 6 October 2016, two construction workers working at Eagle Farm Racecourse were killed when two concrete slabs surrounding a drainage pit they were working in collapsed. The two workers appeared to have managed to avoid being crushed by the first slab by climbing out of the pit in the only way available to them (being a steel ladder), but unfortunately they were unable to avoid being crushed by the second slab.

Following initial investigations into the incident a director of the company responsible for the workers (with 40 years’ construction experience), who was their supervisor at the time, has been charged with two counts of manslaughter.

Workplace Health and Safety Queensland is continuing to investigate the incident. This investigation may result in further charges being brought against businesses or individuals where there is evidence that they may have breached WHS laws in relation to the incident, however it is too early to tell what may happen.

Proactive reduction in exposure is the key

In our view, being proactive, rather than just hoping that something will not go wrong, clearly is the best strategy in managing or reducing a business’ potential exposure to WHS liability.

Taking proactive steps to reduce potential exposure to WHS liability will not only reduce the potential financial and personal costs associated with a WHS breach, but also create safer and healthier (and more productive) workplaces.

Examples of steps that businesses may take in order to reduce their potential exposure to WHS liability are set out in our previous blog “’Tis the season for no so jolly injuries” (click here). These include updating policies, consulting with contractors, and training officers and workers on their WHS duties.

If you would like further information on how your business can reduce its potential exposure to WHS liability, please contact a member of the PCS Legal Team.

​‘Tis the season for not so jolly injuries

Benjamin Urry, Associate Director 

Christmas – the season for warmer weather, social catch-ups and end of year work functions.

Christmas – also the season of urgent deadlines, completing tasks to go on leave that little bit earlier, and perhaps not surprisingly the season of increased work health and safety incidents.

Work health and safety (WHS) – what’s not on Santa’s list

With the festive season upon us, businesses sensibly remind workers about the need to drink responsibly and treat other workers with respect to avoid bullying, discrimination and harassment issues. However, what is all too commonly left off Santa’s “workplace checklist” is the management of work health and safety risks.

Statistically speaking, the last two months of the calendar year result in the most work health and safety incidents. By way of example, just under half of all workplace fatalities in Victoria in 2015 occurred in that brief lead up to the end of year holidays.

Despite these statistics, many businesses either don’t have sufficient practical and legal measures in place to ensure, so far as is reasonably practicable, the health and safety of its workers. This may include continuing to use outdated policies and procedures applying old laws (“old” being pre-2011) which may result in a higher contractual liability. Alternatively, businesses may solely rely on “paper only” systems as opposed to systems which are flexibly designed to accommodate changing WHS risk profiles in the business.

Changes in 2011-2012 to WHS – the item left in the bottom of the stocking

In all States and Territories except Victoria and Western Australia, work/occupational health and safety laws were overhauled in 2011-2012 to provide for a more uniform national system. As a result of these changes, businesses needed to ensure that they were across the changes, including policy updates and better training for a broader range of workers beyond just employees (such as contractors who under WHS laws are considered workers).

However, in our experience many businesses are either not across these changes and rely on outdated policies and procedures or made some progress with implementing the required changes but have put them into the “I’ll get back to it later” basket.

Putting WHS on Santa’s list

With penalties at the levels set out in below table, increased safety risks associated with end of year functions or workers taking short cuts in the end of year rush, now is the time to initiate or finish those updates to your WHS policies, procedures and training.

A checklist of some of the items we would recommend as a minimum requiring attention is set out below:

  1. Update/prepare WHS policies and procedures, including the mandatory issues resolution policy (failure of which is a breach of WHS laws).
  2. Think about arrangements with contractors and other third parties and ensure they are required to comply with WHS obligations, including consulting with your business about WHS. This may necessitate an update to contractual terms.
  3. Train workers, managers and officers on their WHS obligations. This can be done separately or in conjunction with any end of year bullying, harassment and discrimination training. However, if this is the first time these persons are being trained on current WHS laws, separate training is recommended.
  4. Have appropriate systems in place to deal with incidents should they arise, including reporting chains and how to respond to investigations by safety regulators.

If you would like further information on the above or assistance reviewing or preparing WHS policies, procedures or training please contact a member of the PCS Legal Team.

R U Ok? Managing a mentally healthy workplace

R U OK? Day is a day dedicated to reminding people to ask family, friends, colleagues or even strangers the question “R U OK?” as a way of connecting on a meaningful level in order to reach out to anyone who may be struggling with depression and thoughts of suicide.

While R U OK? Day is one day of the year, the sentiment behind R U OK? Day applies all year round and what better place to reach out to people than in the workplace. Importantly, employers have the ability to create a culture where people feel confident asking and answering the question “R U OK?”

Prevalence in the Workplace

Mental illness is the third most prevalent injury/illness in Australia with 16% of employees experiencing mild levels of depression and a further 5.5% experiencing symptoms of clinical depression (moderate to severe). [1] What is most concerning is that 91% of employees believe that mental health in the workplace is important, but despite this, only 52% of employees believe their workplace is mentally healthy. [2]

Recognising Mental Health Conditions at Work

The first step in facilitating support to those experiencing mental health conditions is to recognise the signs and symptoms of mental illness. Being informed about symptoms, or early warning signs, can lead to intervention that can help prevent mental illness or reduce the severity of mental illness.

Indicators include:

  • physical symptoms including appearing tired, headaches, weight loss or gain, less attention to personal grooming;
  • increased absence from work;
  • erratic behaviour;
  • emotional responses;
  • increased workplace conflict;
  • low morale;
  • deteriorating work performance; and
  • withdrawal behaviour.[3]

Managing a Mentally Healthy Workplace

During recruitment, it is important to note that prospective employees should not be required to answer questions about a mental health condition except in limited circumstances where it will affect their ability to carry out the inherent requirements of the position or it will affect their health and safety and/or the health and safety of others. Employers who ask questions outside these limitations may expose themselves to a discrimination claim.

A prospective employer should limit questions of a job applicant to general questions about whether they are aware of any medical condition, symptom or other limitation that would prevent or inhibit them from performing the inherent requirements of the role and if a condition is disclosed, what adjustments (if any) are needed for the job applicant to perform the role.

While performance management is a critical tool for employers, it is also an aspect of employee relations which can be mishandled. A good performance management process is an important aspect of managing a mentally healthy workplace. Some tools for providing good performance management are ensuring that the employee has clear expectations around their role, responsibilities and accountability and regular feedback is given and conversations revolve around how employers and employees can work together to achieve goals. Importantly, employers should take into account personal circumstances that may contribute to an employee’s performance issue and whether a mental health condition may be a contributing factor to the performance concern.

Managing Stressors in the Workplace

Employers can walk a fine line between maintaining productivity and creating a stressful workplace for employees. It is therefore an employer’s responsibility to address any concerns raised by employees about work stressors. An employer can help address job stress by:

  • providing strong leadership skills;
  • creating a hardworking but positive workplace where there is open communication, encouragement and support;
  • making sure that employees are involved in decision making and consulted about big decisions such as restructures;
  • reinforcing peer working relationships to help share workload and create a strong team bond; and
  • having effective training on managing and addressing job stress at employee level.

Most importantly, employers should endeavor to help employees maintain a healthy work-life balance. Encouraging employees to take breaks and leave helps prevent burn out and boosts employee morale.

Building a Mentally Healthy Workplace

While it is impossible to prevent mental illness occurring in the workplace, employers have a significant role in helping reduce the harms associated with mental health and avoiding exacerbating any existing mental health conditions. While building a mentally healthy workplace cannot be facilitated overnight, simply asking R U OK? can be the first step in opening the communication lines and giving someone a much needed listening ear.

Bullying and Mental Health Webinar

October is Mental Health Month and in light of this, PCS is holding a webinar conducted by Director, Deivina Peethamparam on “The Impacts of Bullying on Mental Health”. For more information or to reserve your spot, please click the following link.

PCS October Webinar : Mental Health In The Workplace

Weighing in on the right to workers’ compensation: the interaction between workers compensation laws and work health and safety laws

Ned Overand, Senior Associate

In the recent case of BHP Coal Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 113 a worker at BHP Pty Ltd (“BHP”) had his workers’ compensation claim denied, after his employment was terminated because his weight posed a safety risk to himself and other employees.

The facts

Mr Bray commenced employment with BHP as a shift worker in 1994. In 2008 he was promoted to the position of Shift Supervisor and was responsible for supervising up to 30 operators. As part of his role, Mr Bray was required to cover between 25-30 kilometres of the pit. He was also required to, amongst other things, hitch up lighting plants and climb equipment.

For two years prior to the termination of his employment, Mr Bray was absent from work on paid sick leave due to a non work related stress issue. Mr Bray faced a number of barriers as part of his return to work, including:

  • mobility issues due to his weight (he was 176 centimetres tall and weighed 160 kilograms);
  • alcohol and other dependency issues; and
  • anger management and behavioural issues.

To assist Mr Bray with his return to work BHP paid up to $40,000 for Mr Bray to meet with a number of medical practitioners.

In a report dated 9 March 2013, psychologist Dr Sarkar noted that Mr Bray had challenges associated with physical weight gain and mobility and referred him to Dr McCartney, an occupational physician, to determine his suitability to undertake his supervisory duties. Mr Bray saw Dr McCartney over a period of nine months during which Dr McCartney provided various reports to BHP in respect of Mr Bray’s fitness for work and ability to undertake the physical aspects of his role (including kneeling and squatting, walking on uneven ground, climbing up ladders and entering machinery and other vehicles).

Dr McCartney’s final report, dated 17 November 2013, stated that although there had been improvement in terms of Mr Bray’s prior knee and psychological injuries there were on-going concerns about Mr Brays’ ability to perform specific tasks safely, namely:

  • “tasks that require Mr Bray to undertake repeated kneeling, squatting or climbing ladders pose a significant and foreseeable risk of the aggravation of the underlying degenerative condition affecting his knee;
  • his frame is likely to have considerable difficulty fitting into a light vehicle without significant and foreseeable impact on safely controlling the vehicle;
  • Mr Bray’s obesity places him at a significant and foreseeable risk of slips, trips and falls; and
  • should Mr Bray become incapacitated, he is likely to significantly impact the safety of his colleagues should they attempt to move him”

Following this, BHP met with Mr Bray on 29 January 2014 and offered him two choices:

  1. he enter into a performance plan in respect of his weight loss (given there had been little improvement over an extended period of time); or
  2. BHP and him agree to a mutual separation. Mr Bray rejected the separation offer and requested to return to work.

BHP had a number of concerns associated with Mr Bray’s return to work. In particular Mr Bray’s supervisor, Mr Iliffe, expressed concerns that Mr Bray’s return to work could possibly contravene BHP’s obligations under the Coal Mining Safety and Health Act 1999 (Qld) which contains obligations for workers to ensure they are not exposing themselves or others to risk.

Mr Iliffe discussed these concerns about Mr Bray’s return to work with Mr Milful, the Senior Site Executive, including concerns about Mr Bray’s ability to:

  • walk on uneven ground;
  • walk a reasonable distance;
  • get on a machine; and
  • act and assist in an emergency situation.

After considering all of the facts, Mr Iliffe and Mr Milful determined that Mr Bray presented an “unacceptable risk to himself and other employees on the site” and as a consequence, a decision was made to terminate his employment.

On 12 February 2014 Mr Iliffe met with Mr Bray and communicated the decision to terminate his employment. On 24 February 2014 Mr Bray lodged an application for compensation with BHP for a psychiatric/psychological injury.

The primary decision 

On 20 May 2014, BHP (who is a self insured) rejected the worker’s compensation application made by Mr Bray on the basis that his psychological issue arouse out of reasonable management action taken by BHP and therefore he did not suffer a compensable “injury” under section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘Act’).

Mr Bray sought a review of the decision by the Workers’ Compensation Regulator who set aside the rejection of the claim on the grounds that it objected to the way BHP terminated Mr Bray’s employment by not giving Mr Bray prior notice that they were considering termination of his employment.

BHP appealed this decision to the Queensland Industrial Relations Commission.

The appeal 

The key issue for determination was not whether Mr Bray suffered a workplace injury but whether that psychiatric/psychological injury was a compensable injury.

Section 32(5) of the Act provides:

“5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
(b) the worker’s expectation or perception of reasonable management action being taken against the worker;
(c) action by the, Regulator or an insurer in connection with the workers application for compensation” (Our emphasis added).

The decision 

Commissioner Knight found that Mr Bray’s psychological injuries were a result of reasonable workplace management action.

The Commissioner held that BHP had provided support to Mr Bray to improve his health over a long period of time and in making the decision to terminate his employment, considered the safety risk to Mr Bray and his colleagues of his return to work.

The Commissioner further stated that the “reality of the situation was that Mr Iliffe was faced with the prospect of returning Mr Bray to work while there remained significant risk factors involved with doing this. Mr Iliffe had been unable to see any progression in Mr Bray’s attempts to improve his health and mostly his weight over a long period of time”.

While the Commissioner acknowledged that there might have been a better way for BHP to give Mr Bray an indication that termination of his employment was a possibility, it was not unreasonable to effect the dismissal when considering the “long history of the matter and prior conversations that had been held in respect of the termination of Mr Bray’s employment”.

What does this mean for employers? 

  1. A decision to terminate an employee’s employment can be based on legitimate OH&S concerns: given the obligations of employers under WH&S legislation, employers can, in the right circumstances, defend against claims brought in relation to termination of employment (eg. workers’  compensation, unfair dismissal, adverse action etc.) where it can be established that the reason for the decision was due to safety concerns and their corresponding obligations under WH&S legislation.
  2. Employers should act quickly: given the significant financial costs associated with workers’ compensation claims, if employers are concerned as to the legitimacy of a workers’ compensation claim they should act quickly to challenge and/or input into the investigation of a claim before an insurer makes a determination to accept the claim.
  3. Keep detailed notes and evidence: in this case Mr Ilife’s notes and that of the medical advisors supported the reasonableness of the decision to terminate Mr Bray’s employment and ultimately influenced the Commission in its findings.
Key Takeaways

  1. A decision to terminate an employee’s employment can in the right circumstance be defended on legitimate WH&S concerns.
  2. Employers should act quickly if they are concerned as to the legitimacy of a workers’ compensation claim.
  3. Keep detailed notes and evidence: in this case Mr Ilife’s notes and that of the medical advisors supported the reasonableness
    of the decision to terminate Mr Bray’s employment and ultimately influenced the Commission in its findings.

PTSD, a “bodily injury” or not?

The Supreme Court of New South Wales recently gave a landmark decision in the case of Casey v Pel-Air Aviation Pty Ltd  [2015] NSWSC 566 which has changed the dynamics of workers compensation as employees can now potentially pursue compensation for Post Traumatic Stress Disorder (“PTSD”) as a “bodily injury”.

A doctor and a nurse, Mr Helm and Ms Casey, were sent to help transport a seriously ill patient from Samoa to Melbourne. During the course of their journey, the pilot was unable to land the plane after four attempts and crashed the plane into the ocean. Although there were no deaths, Ms Casey suffered physical and psychological injuries. 

Ms Casey commenced proceedings in the New South Wales Supreme Court against Pel-Air Aviation Pty Ltd (“Pel-Air”) and claimed damages. Pel-Air accepted that the crash had been caused by the negligence of the pilot and co pilot, for which they had vicarious liability. An agreed sum of worker’s compensation was made to Ms Casey.

Ms Casey had suffered from a complex pain syndrome, a major depressive disorder, an anxiety disorder and PTSD. She argued that these were caused by the injuries and were compensable under the Civil Aviation (Carriers Liability) Act 1959 (Cth) (the “Act”). Pel-Air argued that PTSD was a psychiatric disorder and had been not been caused by the trauma during the crash itself and was not a “bodily injury”.

Justice Schmidt found that the PTSD which Ms Casey suffered from was caused by damage to her brain and to other bodily processes. Justice Schmidt also stated that the prospects for Ms Casey’s future were very poor. It was therefore concluded that the PTSD was a bodily injury and compensable under the Montreal Convention and the Act and was to be included in the damages awarded. 

What do employers need to be aware of as result of this landmark case?

  • Employees who have PTSD due to an injury while working can potentially claim for compensation.
  • Employers need to ensure they have all the necessary health and safety policies and procedures in place to minimize the risks of any claim. 

Weighing in on the right to Workers’ Compensation

A worker at BHP Pty Ltd (“BHP”) has had his Workers’ Compensation claim denied, after his employment was terminated because his weight posed a safety risk to himself and other employees.

Facts

Mr Bray commenced employment with BHP as a shift worker in 1994.Most recently he held the position of Shift Supervisor and was responsible for supervising up to 30 operators.As part of his role, Mr Bray was required to cover between 25-30 kilometres of the pit.He was also required to, amongst other things, hitch up lighting plants and climb equipment. 

For two years prior to the termination of his employment, Mr Bray was absent from work on paid sick leave due to a non work related stress issue.Mr Bray faced a number of barriers as part of his return to work, including:

  • mobility issues due to his weight (he was 176 centimetres tall and weighed 160 kilograms);
  • alcohol and other dependency issues; and
  • anger management and behavioural issues.

To assist Mr Bray with his return to work BHP paid up to $40,000 for Mr Bray to meet with a number of Medical practitioners.

In a report dated 9 March 2013, Psychologist Dr Sarkar noted that Mr Bray had challenges associated with physical weight gain and mobility and referred him to Dr McCartney, an Occupational Physician, to determine his suitability to undertake his supervisory duties.Mr Bray saw Dr McCartney over a period of nine months during which Dr McCartney provided various reports to BHP in respect of Mr Bray’s fitness for work and ability to undertake the physical aspects of his role (including kneeling and squatting, walking on uneven ground, climbing up ladders and entering machinery and other vehicles). 

Dr McCartney’s final report, dated 17 November 2013 stated that although there had been improvement in terms of Mr Bray's prior knee and psychological injuries there were on-going concerns about Mr Brays’ ability to perform specific tasks safely, namely:

  • “tasks that require Mr Bray to undertake repeated kneeling, squatting or climbing ladders pose a significant and foreseeable risk of the aggravation of the underlying degenerative condition affecting his knee; 
  • his frame is likely to have considerable difficulty fitting into a light vehicle … without significant and foreseeable impact on safely controlling the vehicle;
  • Mr Bray's obesity places him at a significant and foreseeable risk of slips, trips and falls; and
  • should Mr Bray become incapacitated, he is likely to significantly impact the safety of his colleagues should they attempt to move him". 

Following this, BHP met with Mr Bray on 29 January 2014 and offered him two choices; he enter into a performance plan in respect of his weight loss (given there had been little improvement over an extended period of time) or he and the company agree to a mutual separation. Mr Bray rejected the separation offer and requested to return to work.

BHP had a number of concerns. In particular Mr Bray’s supervisor, Mr Iliffe expressed concerns that Mr Bray’s return to work could possibly contravene BHP’s obligations under the Coal Mining Safety and Health Act 1999 Qld which contains obligations for workers to ensure they are not exposing themselves or others to risk.

Mr Iliffe discussed these concerns about Mr Bray’s return to work with Mr Milful, the Senior Site Executive, including concerns about Mr Bray’s ability to: 

  • walk on uneven ground
  • walk a reasonable distance
  • get on a machine; and
  • act and assist in an emergency situation. 

After considering all of the facts, Mr Iliffe and Mr Milful determined that Mr Bray presented an “unacceptable risk to himself and other employees on the site” and as a consequence a decision was made to terminate his employment.

On 12 February 2014 Mr Iliffe met with Mr Bray and communicated the decision to terminate his employment.On 24 February 2014 Mr Bray lodged an application for compensation with BHP for a psychiatric/psychological injury. 

The primary decision

On 20 May 2014, BHP (who is a self insured) rejected the worker’s compensation application made by Mr Bray on the basis that his psychological issue arouse out of reasonable management action taken by BHP and therefore he did not suffer a compensable “injury” under section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘Act’).

Mr Bray sought a review of the decision by the Workers’ Compensation Regulator who set aside the rejection of the claim on the grounds that it objected to the way BHP terminated Mr Bray’s employment by not giving Mr Bray prior notice that they were considering termination of his employment.

BHP appealed this decision to the Queensland Industrial Relations Commission. 

The appeal

The issue for determination was not whether Mr Bray suffered a workplace injury but whether that psychiatric/psychological injury was a compensable injury.

Section 32(5) of the Act provides:

“5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances— 

(a)  reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment

(b) the worker’s expectation or perception of reasonable management action being taken against the worker; 

(c) action by the Regulator or an insurer in connection with the workers application for compensation.”

The decision

Commissioner Minna Knight found that Mr Bray’s psychological injuries were a result of reasonable workplace management action.

The Commissioner held that BHP had provided support to Mr Bray’s to improve his health over a long period of time and in making the decision to terminate his employment, considered the safety risk to Mr Bray and his colleagues of his return to work.

The Commissioner further stated that the “reality of the situation was that Mr Iliffe was faced with the prospect of returning Mr Bray to work while there remained significant risk factors involved with doing this. Mr Iliffe had been unable to see any progression in Mr Bray’s attempts to improve his health and mostly his weight over a long period of time”. 

While the Commissioner acknowledged that there might have been a better way for BHP to give Mr Bray an indication that termination of his employment was a possibility, it was not unreasonable to effect the dismissal when considering the “long history of the matter and prior conversations that had been held in respect of the termination of Mr Bray's employment”.

What does this mean for employers?

  • A decision to terminate an employee’s employment will be hard to displace if it is based on legitimate OH&S concerns: given the obligations of employers under OH&S legislation, employers will generally be in a strong position to defend against claims brought in relation to termination of employment (i.e. workers compensation, unfair dismissal, adverse action etc.) where it can be established that the reason for the decision was due to safety concerns and their corresponding obligations under OH&S legislation. 
  • Employers should act quickly: given the significant financial costs associated with workers compensation claims, if employers are concerned as to the legitimacy of a workers compensation claim they should act quickly to challenge and/or influence the investigation of a claim before an insurer makes a determination to accept the claim.
  • Keep detailed notes and evidence: in this case Mr Ilife’s notes and that of the medical advisors supported the reasonableness of the decision to terminate Mr Bray’s employment and ultimately influenced the Commission in its findings.