Even if you have health and safety management systems in place in your organisation, if your workers fail to adhere to them, the employer can still be held liable.
This is what happened to a KFC operator in NSW when a worker stood on a cooker to clean a ventilation hood, before slipping into hot cooking oil after an electrical blackout.
The then 20-year-old man sustained third-degree burns to his left leg and hands, which required skin grafts.
Nearly two-and-a-half years later, he is still suffering from mobility issues and has been psychologically scarred as a result of the incident.
In SafeWork NSW v QSR Pty Ltd (2019), SafeWork NSW submitted that QSR, which runs 61 KFC restaurants, had failed to protect its workers by ensuring they only cleaned the ventilation hoods with the cookers moved away from the unit.
This was despite the employer having procedures outlined in its HVAC (heating, ventilation and air conditioning) manual, web-based training materials for the cooker, and clear safety signage actually on the cooker which included warnings not to stand, sit or lean on the cooker and that painful, scarring, life threatening injuries could occur if the danger labels weren’t read or followed.
NSW District Court Judge Wendy Strathdee said that she accepted that the operator was “aware of its obligations under the WHS Act and has made significant efforts to comply with those obligations”, but she said that was “not enough”.
She found that the company had breached the state’s Work Health and Safety Act 2011, referring to the following sections of the SafeWork Australia Code of Practice, How to Manage Work Health and Safety Risks:
The control measures that you put into operation will usually require changes to the way work is carried out due to new or modified equipment or processes, new or different chemicals or new personal protective equipment. In these situations, it is usually necessary to support the control measure with:
▪ Work procedures
Develop a safe work procedure that describes the task, identifies the hazards and documents how the task is to be performed to minimise the risks.
▪ Training, instruction and information
Train your workers in the work procedure to ensure that they are able to perform the task safely. Training should require workers to demonstrate that they are competent in performing the task according to the procedure. It is insufficient to simply give a worker the procedure and ask them to acknowledge that they understand and are able to perform it. Training, instruction and information must be provided in a form that can be understood by all workers.
The level of supervision required will depend on the level of risk and the experience of the workers involved. High levels of supervision are necessary where inexperienced workers are expected to follow new procedures or carry out difficult and critical tasks.
4.3 How to ensure that controls remain effective
The following actions may help you monitor the control measures you have implemented and ensure that they remain effective:
▪ Accountability for health and safety – Accountability should be clearly allocated to ensure procedures are followed and maintained. Managers and supervisors should be provided with the authority and resources to implement and maintain control measures effectively.
▪ Up-to-date training and competency – Control measures, particularly lower level controls, depend on all workers and supervisors having the appropriate competencies to do the job safely. Training should be provided to maintain competencies and to ensure new workers are capable of working safely.
▪ Regular review and consultation – Control measures are more effective where there is regular review of work procedures and consultation with your workers and their representatives.’
The injured worker used the same unsafe method to clean the ventilation hood on a weekly basis since he started working at the store in mid-2014.
His manager on the first day told him to do it that way and at no point did any other managers or supervisors instruct him to do otherwise, including the 19-year-old supervisor and 20-year-old assistant manager who were in charge on the day of the incident.
“The duty to ensure the safety of young and vulnerable workers must be taken very seriously,” Judge Strathdee said.
The employer cooperated with SafeWork NSW during its investigations into the incident and offered an early guilty plea.
It received a $60,000 fine (discounted from $80,000) and was ordered to pay costs.