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Domino's Pizza woes a lesson for other employers

Date: 21/06/2017

Domino's response to the situation has fuelled a lot of debate. However, regardless of the merits of the decision, the story highlights an important issue for employers in terms of what they should be doing to keep employees safe when they are required to work off-site.

The Health and Safety at Work Act imposes a duty on employers to take all reasonably practicable steps to ensure the health and safety of employees.

There are a number of factors that go into determining what is reasonably practicable including weighing up how likely the hazard or risk is to happen, the degree of harm that could be caused, how much is known about the hazard or risk, and options for eliminating or minimising the risk.

Where a serious risk arises from sending staff to an off-site location and this risk cannot be eliminated or minimised, an employer will potentially be in breach of its obligations in sending staff to that place.

A more common scenario is where staff are required to work at a location that is under the control of some other entity. An obvious example is the practice of labour companies placing employees on temporary work assignments with clients.

In these situations, the duty to ensure the health and safety of the employee will be shared between both the employer and the client. Obviously the client, and not the employer, is in a position to directly control and influence the work environment and as such, it is their responsibility to ensure the environment does not create a hazard.

However just because the employer does not control the environment, does not mean it can sit idly. It still needs to take appropriate steps to ensure it is not sending its staff member into harms way. It is also obligated to cooperate, co-ordinate and consult with the client (or any other person or entity that owes a health and safety duty) regarding how to ensure the well-being of its employee.

One cautionary tale on this point concerned Trainee and Apprentice Placement Service Incorporated (TAPS) which placed plumbing and roofing apprentices with host employers.

During one such placement an apprentice suffered an electric shock, leaving him with "horrific injuries" when a section of guttering he was handling came into contact with power lines.

While TAPS was not in control of the site where the apprentice was working, it was still prosecuted in South Australia's Industrial Relations Court on the basis that it had failed to engage in a consultation process with the roofing company about its health and safety policies and procedures.

TAPS pled guilty to the charge and acknowledged that its audit of the site was inadequate, and that no safety measures were in place despite the proximity of powerlines creating a high risk. The court, in looking at the evidence, commented that "It was surely not rocket science that an employer and the [host employer] could have seen…that the powerlines presented a real and present danger."

While the court was sensitive to the difficult position TAPS was in, and acknowledged that it necessarily needed to rely on host employers to do the right thing, it found that TAPS still should have consulted with the host employer about how its health and safety duties would be fulfilled.

TAPS was ordered to pay a fine of A$12,000 ($12,580). While this may seem a modest amount given the range of penalties now available, it took account of a number of mitigating factors such as TAPS' status as a not-for-profit organisation, its exemplary prior record, extensive and costly steps it had taken after the incident to revamp its safety procedures, and the considerable support it had provided to the injured apprentice. Other employers may not get off so lightly.

Where an employee is injured whilst at work, the first to be scrutinised is likely to be their employer. However, the law recognises that employers cannot necessarily control every possible eventuality, particularly when employees are working somewhere beyond their direct control.

Nonetheless, it is imperative that employers take appropriate steps to assess and plan for possible risks, and work with others who are in a position to do something about them.