The Liability of Employers for Workplace Injuries - Essay Example

EMPLOYMENT LAW A. Dimity Dimity was very active in promoting the Never Run, Walk campaign, which was aimed at preventing injury at the workplace. Oneday at work, she climbed a foldable stepladder, without opening it. Due to a distraction, she lost her footing and fell down, thereby injuring her spine. She had been cautioned by her supervisor, Mike, on several previous occasions to use the stepladder in a safe manner. Her injury made her unfit, for work that required standing for prolonged periods. For advising Dimity with regard to her rights in the workplace, in the context of her injury, the following issues need to be considered. Issue Whether Dimitys injury, which resulted from her falling down from a ladder, while working for the company, can attract the provisions of OH&S issues of the NSW workplace safety laws. Rule of Law Section 9 of the Workers Compensation Act 1987 No 70 describes the liability of employers with regard to the injuries sustained by their workers. The compensation to be made to workers, management of their injury and their return to work responsibilities, has been detailed in the Workers Compensation Act 1987, Work Injury Management and Workers Compensation Act 1998 and Workers Compensation Regulation 2003.1 Application In the year 2010, Dimity Smith, and employee of the Cheaper Than Chips Pty Ltd, which was a part of a chain of liquidation stores, attended a state wide conference for the employees of this chain of stores. A significant amount of this conference was devoted to OHS issues, such as unsafe plant and equipment, and slip and fall accidents. The liability of employers, whose workers sustain injuries, is described under Section 9 of the Workers Compensation Act 1987 No 70. Sub – section 9(1) of this Act stipulates that a worker who has been injured is to be provided with compensation by the employer, as per the provisions of this Act. In case of the death of the worker, the dependants of the worker are to receive the compensation. Furthermore, sub – section 9(2) of this Act declares that compensation has to be paid, regardless of whether the injury was sustained at the place of employment. 2 Section 22 of the Workers Compensation Act 1987 No 70, deals with situations, wherein the worker sustains more than one injury. In such cases it is very important to determine the injury that generates the compensation liability. Subsection 22(1) declares that the Commission can identify the injury, either at the behest of the employer or of the Authority that has generated liability to pay compensation under the Act. In addition, subsection 22(2) affirms that such determination is independent of any agreement. Moreover, it irrespective of any compensation ordered under sections 15 or 16 of this Act, or the requirement to apportion liability under section 22.3 It is incumbent upon a worker to inform the employer, as soon as possible, with regard to having been injured, authorise the attendant physician to provide the related information to the insurer or Scheme Agent and the employer. In addition, the injured worker has to cooperate with and participate in the return to work and injury management plans. Injuries sustained during the course of their employment entitle workers to claim compensation. In general, for the purposes of insurance, accidents have to be recorded in an accident log. 4 As such, it is the duty of the employer to ensure that all the employees comprehend their rights and responsibilities with regard to accidents at the workplace. It is enjoined upon employers, by the various state and territory laws, to report the occurrence of events, such as death, grievous injury or an incident that could have resulted in injury or death. Moreover, these laws require the employer to adopt reasonable measures to provide injured workers with suitable duties or rehabilitation, while they are being paid compensation. 5 In order to harmonise occupational health and safety (OH&S) legislation, several work health and safety laws were implemented on 1 January 2012. These were made operational in several jurisdictions. Some jurisdictions deferred this move to the year 2013, notable among these being Victoria, Tasmania, Western Australia and Southern Australia. 6 The decisions in Leighton Contractors Pty Ltd v Fox & Ors7 and Calliden Insurance Limited v Fox8 provided substantial relief to contractors. These rulings recognised the practical difficulties envisaged during the management of the larger sites and clearly demarcated the roles of the various entities involved. At the same time, there was recognition of the necessity for independent contractors to comprehend and comply with the OH&S compulsions. As a result of these rulings, the principal contractors do not bear responsibility for the safety of independent contractors who are injured while acting within their expertise. Moreover, the principal contractors are not obliged to train independent contractors in the area of hazards of their expertise. However, contractors are required to hire subcontractors who possess the necessary competence. In brief, the court ruled that the independent contractor was merely required to employ reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. In our problem, Dimity was negligent in following the instructions of her supervisor in using the step ladder in a safe manner. Conclusion Dimity fell down from the ladder, due to her negligence in following the instructions regarding the safe use of the ladder, which her supervisor had given her on many previous occasions. This shows her careless attitude towards the safety measures to be adopted in her work place. Hence, the employer is not liable for Dimity’s fall, as the employer had provided proper assistance in providing awareness of the OHS issues to the employees through instructions and guidance. Dimity cannot succeed in a claim against her employer under the provisions of law, as she was not careful in following her supervisor’s instructions. B.Kate On seeing Dimity fall from the stepladder, a new employee, Kate rushed to her help. She failed to notice a bottle that had been dropped by a customer on the floor, and which had broken due to the fall. She slipped on the contents of the broken bottle and sustained injury to her hip. This required Kate to be hospitalised for two weeks. For advising Kate in respect of her claims for the injuries sustained, the following issues have to be considered. Issue It is required to advise Kate on the success she can expect, on bringing a claim of not having provided adequate safety at the workplace, against her employer. Rule of Law The Work Health and Safety Act 2011 (NSW) (WHS Act), has been seen to generate several challenges for small business enterprises. The WHS Act makes the entity conducting a business or undertaking, primarily responsible for adopting all reasonable measures relating to work health and safety, and not an employer. An entity, in this context, can include a partnership or a company. 9 Moreover, this Act defines a worker as anyone who carries out work in any capacity for a person conducting a business or undertaking. As a result, this definition specifically includes contractors, subcontractors, employees, volunteers, outworkers, apprentices, work experience students, and the employees of contractors and subcontractors. Those who visit a workplace have been made partially responsible for their own safety, as this new Act requires them to comply with reasonable instructions and to exercise reasonable care.10 Application The directors and managers of a company are required by the WHS Act to exercise due diligence all the time. The officers of a company are required by the WHS Act to be cognisant with the latest information regarding health and safety issues. They are also required to ensure that their corporation employs the required resources to minimise or eliminate OH&S risks. Moreover, such officers have to respond promptly to OH&S incidents or risks that are brought to their attention, by consulting with workers and reporting to the appropriate authority regarding the notifiable incidents. 11 In our problem, the employer had not maintained the premises safe and free of risk to the employees. This is due to the fact that the employer had not taken measures to clean the premises immediately after a customer had dropped a bottle, which broke, on the premises floor. With regard to serious infringements that entail exposure to death and recklessness, serious illness or injury, the maximum penalty is $3 million for a corporate body and the corresponding amount for an individual is $600,000. The previous legislation had provided for a maximum fine of $165,000 for an individual and $1.65 million for a body corporate. The Local Court, District Court and Supreme Court have been empowered to admit prosecutions under the WHS Act. A wide range of sentencing choices have been provided to the authorised courts, such as remedial orders, adverse publicity orders, injunctions, penalties, community service and compensation orders.12 In accordance with the legislation enacted in the areas of occupational health and safety, and work health and safety, employers are required to ensure certain things, which have been described in the sequel. Some of the more important of these requirements are the provision of safe premises; safe machinery and materials; safe systems of work; instruction, information, training and supervision; and a suitable working environment and facilities. Failure to comply with these requirements can render an employer liable to prosecution and the imposition of fines. As such, these measures on being adopted prove to be of great benefit in retaining skilled employees.13 There are certain steps that an employee on being injured at work, must undertake. The employer has to be informed, as soon as possible, about the injury. Employees who are injured at work should ensure that their name, and date and details of the injury are recorded in the register of injuries maintained by their employer. Thereafter, a doctor is to be approached and should be made to complete a WorkCover medical certificate. 14 After that the doctor should sign the medical certificate, thereby indicating that the injured employee has nominated that particular doctor as the treating doctor. Such nominated treating doctors are to be authorised by the injured employees to provide information to the insurer or Scheme Agent and the concerned employer, in order to provide assistance to an injury management and return to work plan. Moreover, injured employees should submit the completed medical certificate, along with any bill or receipts for treatment. 15 From the legal perspective, infringements of workplace occupational health and safety laws are deemed to be of the same gravity as the more usual crimes against property or person. With regard to accidents at the workplace that entail the commission of a criminal offence, the mere conduct of business becomes the same as conducting a quasi – criminal enterprise.16 Conclusion Kate, can claim compensation for injuries sustained during her work in the premises. Although she is a casual worker, The Work Health and Safety Act 2011 provide protection to all those people who work on the premises in any capacity. Kate can make a claim against her employer for not providing a suitable and safe working environment. As such, the company is liable for violating the provisions of the WHS Act, 2011. List of References Accidents and injuries. (n.d.). Retrieved October 10, 2012, from http://www.business.gov.au/BusinessTopics/Occupationalhealthandsafety/Pages/Accidentsandinjuries.aspx. Boyce, G. (2005). Workplace Safety: Sweeping up OH&S mess. Institute of Public Affairs Review, 57(4), 29 – 30. Calliden Insurance Limited v Fox, HCA35 (2009). Konstantinidis, K. (2012). Australia: New work health and safety laws: key changes and impacts on small business. Retrieved October 11, 2012, from http://www.mondaq.com/australia/x/183552/Health+Safety/New+work+health+and+safety+laws+key+changes+and+impacts+on+small+business. Leighton Contractors Pty Ltd v Fox & Ors, NSWCA (23 2008). Workers compensation and injury management. (2012). Retrieved October 11, 2012, from WorkCover Authority of NSW: http://www.workcover.nsw.gov.au/lawpolicy/yourrightsresponsibilities/Pages/default.aspx. What a worker must do. (2010). Retrieved October 11, 2012, from http://www.workcover.nsw.gov.au/injuriesclaims/makingaclaim/whataworkermustdo/Pages/default.aspx. Workers Compensation Act 1987 No 70 . (2012, October 1). New South Wales, Commonwealth of Australia. Workers Compensation Act 1987 No 70 . (2012). Retrieved October 11, 2012, from NSW Legislation: http://www.legislation.nsw.gov.au/maintop/view/inforce/act+70+1987+cd+0+N. Workers Compensation and Injury Management Act 1981. Commonwealth of Australia. Your OH&S obligations. (n.d.). Retrieved October 11, 2012, from http://www.business.gov.au/BusinessTopics/Occupationalhealthandsafety/Pages/YourOHandSobligations.aspx. Read More