15 Feb 2022Sometimes it’s much wiser to agree to a worker’s reasonable request than risk breaching your duty of care to employees, which could land you in a court battle.
This is the scenario that played out for a Canberra employer, whose receptionist rolled her ankle while rushing to answer the office phone. The employer was taken to court by the receptionist, where it was ordered to pay $120,000 in compensation for her rolled ankle. (See Michel v Broadlex Services Pty Ltd [2020] ACTMC 27.)
Refusal to buy simple headset proves to be costly
The court heard the employee had asked her employer to get her a headset so she didn’t have to rush to answer the phone from the nearby storage room, where she often worked.
The employee said that if calls were not answered quickly, they would be diverted to the firm’s Sydney office and she would be reprimanded for not being at her desk.
The employer had refused the receptionist’s request, arguing she was not away from her desk often enough to justify the expense. With headsets costing as little as $25, it would have been a better move to buy the headset, which would have reduced the risk of an injury in the workplace.
Employer should have taken precautions to reduce risk of injury
In court, the receptionist said she often had to rush from the back room to answer the phone and on one occasion rolled her ankle while doing so.
“She heard a crack and it was incredibly painful,” her doctor testified, describing the injury as an ‘inversion sprain’.
“She says what made it more annoying was that when she picked up the telephone, the person had hung up.”
The magistrate said the employer “knew, or ought to have known, that the circumstances giving rise to the risk of injury to the plaintiff were recurring”.
“I am satisfied that the risk of harm to the plaintiff was not insignificant and that a reasonable person in the defendant’s position would have taken the precaution of providing a headset to the plaintiff to enable her to answer the phone while away from her usual desk at reception,” the magistrate said as he awarded the receptionist $119,000 plus costs.
What is an employer’s primary duty of care to employees?
An employer’s legal duty of care to employees is outlined in the NSW Work Health and Safety Act 2011.
Section 19 of the Act provides that there is a “primary duty” of a person conducting a business or undertaking to protect the health and safety of all workers and make sure that workers are not put at risk of injury or illness, “so far as it is reasonably practicable” to do so.
Employer’s duty of care extends to anyone on its premises
In the NSW Civil Liability Act 2002, there is a wider duty of care to persons who are on premises. The duty is that a person who owns or controls the premises must show “reasonable” care for the safety of persons and take steps to avoid reasonably foreseeable harm or damage.
Section 5B of the Act specifies the principles behind a duty of care. It includes that it would be necessary for the plaintiff to establish that the risk was foreseeable, the risk was not insignificant, and that a reasonable person would have taken precautions to limit the risk.
Workplace safety must be a priority
Employers need to remember that legally they have a duty of care to employees to provide a safe working environment.
If employers have been alerted to a possible safety concern in the workplace, they must take it seriously and adopt reasonable measures to ensure any safety problems are rectified.
Failure to do so could result in a court finding them to be negligent and ordering them to pay thousands in compensation.
