Legal Issues Arising From A Workplace Incident Involving An Injured Employee Essay.

1. Identify and establish the legal principles- A specific area of legislation or common law principle;. that you will use to address the key point in issue. You can use legislation and/or case precedence.

2. Clearly explain why the key point is the legal issue that requires addressing, based on the case element. Apply it to the identified key party involved in the issue and support your answer with legislation/legal principles/or case law. In relation to case law, draw on those cases identified in the learning material.

Bill Bolt was preparing a work plan and he noticed that one of his new machines requires two staff instead of one. In order to meet his increased production targets, Bolt decided to remove safety guard as this would fasten the rate of production. This removal of safety guard was supported by both the employees, Bolt as well as machine operator, Dave Dingle. The operator had supported the removal of safety guard as it was easier for him to handle the old machine without any guard. However, under the influence of too much alcohol that he consumed in the prior evening, the machine accidentally crushed his two fingers while amputating the other two fingers. He pressed the emergency button that was beside his knees and screamed for help.

Workplace Health and Safety Act 2011 S. 205 prevents any sort of unauthorised alterations or modulating any change (Work Health and safety Act, 2011). In this case, Bolt desperately wanted to speed up his production rate in order to meet his targets and therefore, he altered the machine and removed the safety guard.

Bolt has no right to alter or change the machine without informing the management. In this case, both the employees, Bolt as well as Dingle has approved this change in machine in order to increase the rate of production. The Workplace Health and safety Regulation 2011 outlines that it is unethical to alter any machine parts that could have an impact on the health of the involved employees. In this case, the machine had safety guard that could protect the operating employee from getting any form of injury. In this case, Bolt had disregarded this fact and removed the safety guard in order to earn a high profit (Influenced by Hammer et al. 2016). He knew that in case he could not meet his production target then it could affect the economy and profitability rate of his company. Therefore, he changed the machine and removed the safety guard. Bill’s decision of removing the safety guard was unethical under the Workplace Health and safety Act 2011 S. 205.

Furthermore, the machine operator consumed too much alcohol and he started to operate his machine under the influence of alcohol. This has affected his presence of mind and failed to make him alert while operating machine (Haas & Yorio, 2016). According to Section 28 WHS Act 2011, it is the duty of the worker to take reasonable and proper care of his health at the time of work. Dingle should have not operated his machine under the influence of alcohol. Mital (2017) commented that it is essential to take proper care of health at the time of working. In case of Colwell v Top Cut Foods Pty Ltd ACN 010 650 281 [2018], the plaintiff complained that he was subjected to workplace harassment and the employer was not taken proper care of his health. Therefore, Ndjoulou et al. (2015) commented that it is the duty of the worker to ensure their proper health and safety at the time of operating any machine.

Issue

Conclusion 

Thus, it can be said that in this case, both Mr Bolt and Mr Dingle were at fault according to WHS policy. Bolt should not have been removed the safety guard in order to increase the production rate. It was his duty to take care of the health of his employer. This act of removing safety guard from machine violated Section 205 WHS Act 2011. Furthermore, Dingle should have taken care of his health while working on a machine. According to Section 38 WHS Act 2011, Bolt should have informed the managing director, Mr Randall Rattle about removing the safety guard. Therefore, the managing director needs to penalise Bolt for his action of removing safety guard without informing the management.

Bill Bolt instructed every employee to continue with their work and he wanted to put the safety guard in order to mask his faults. Furthermore, he even prohibited the first-aid officer to call an ambulance. Bolt did not want the higher authority to understand his fault and therefore, he wanted to mask the issue. Bill Bolt was putting the safety guard on the machine and this entire act was witnessed by the Ambulance Paramedics. Bill even directed every employee along with the paramedics not to enter the scene as he wanted to sort the situation. Bolt was in-charge of the situation and it was his duty to take care of the situation. He should not have removed the safety guard from the machine in order to increase the production rate. In order to control the entire situation, he wanted to put the safety guard on the machine and make people understand that he was not at fault of the situation.

Section 38 WHS ACT 2011 states that it is the duty of the operating manager to inform the managing director, Rattle regarding the change of machine. He removed the safety guard and this action should have been notified to the officer (Influenced by Moyo et al. 2015).

Bill Bolt should have informed his immediate hierarchy regarding occurrence of this incident. Bibby (2017) opined that managing director of any company needs to get informed regarding any incident within their workplace. However, in this case, Bolt has not informed managing director, Rattle regarding this incident. Therefore, he violated section 38 WHS Act 2011 that states undertaken person should notify their hierarchy or managing director regarding any incident within their workplace. Based on the guidelines of WHS policy, the convicted person, in this case, Bolt should be penalised and his maximum penalty unit could be 100. This sort of negligence of informing the hierarchy was also observed in case of Deans v Maryborough Christian Education Foundation Ltd [2018]. Antonsen (2017) commented that it is the duty of operating manager to take care of their employees. Division 2 Section 19 of WHS Act 2011 states that a conducting person should take care of the health and safety of any employees. Furthermore, in case of an emergency, it is their duty to ensure primary care provided to the affected person.

Rule

In this case, Bill did not allow any paramedics to enter into the situation and take care of the injured machine operator, Dingle. Subsection (1) and (2) of WHS Act 2011 Division 2 proclaims that the person-in-charge should take care of the situation and ensure effective maintenance of machine parts. In order to increase production rate, Bill removed the safety guard and this is the main cause of this incident. Allen, Porter & Angle (2015) commented that the operating or managing director should monitor proper functioning of the machine parts and ensure that all these parts are properly functioning. Underhill & Rimmer (2015) added that regular surveillance of these working officers would minimize the tendency to occur any accident within the workplace.  

Conclusion 

Bolt should have informed the hierarchy or managing director regarding the incident after its immediate occurrence. However, Bill wanted to mask his fault in this incident by putting the safety guard back into the machine. Apart from this, he did not allow the first-aid officer to provide immediate care to Dingle and even did not allow the paramedics to get informed regarding this situation. Thus, based on Section 38 and Division 2 of WHS Act 2011, Bill Bolt is convicted and has violated the legal guidelines. He needs to be penalised 100 units according to the guidelines of the WHS policy.  

The first-aid officer discarded the instruction provided by Bill Bolt and informed the paramedics regarding the situation in the workplace. The officer called the ambulance by using triple zero (000) and this automatically notified the Workplace Health and Safety Queensland (WHSQ). However, on arrival of the WHS officers, Bill did not allow them to inspect the situation and he told them that the safety manager was on leave. In addition to this, Bolt even told the officers that managing director and chief engineer were at a meeting and therefore, advised them to visit following week. The officers insisted on investigating the situation, however, they were not allowed to inspect by Bolt. The officers were asked to visit only in presence of safety manager and chief engineer.

Subdivision 1 Section 163 of WHS Act 2011 states that any inspector could visit or inspect the workplace at any point of time without seeking permission. In this case, Bolt has no right to prevent the WHS inspectors from investigating the site.  

Bill Bolt had no right to prevent entry of officers from visiting the site within the workplace. Hofmann, Burke & Zohar (2017) stated that WHS officers could enter or inspect the workplace at any point of time. Bailey, Dollard & Richards (2015) further added that these inspectors do not need to seek permission from the safety manager or managing director of any organisation. According to the Section 164 of WHS Act 2011, investigating officers does not require prior notification regarding their entry into any workplace. Furthermore, Abubakar (2015) commented that employees should be presented with clear direction regarding the rules and their duties within the workplace. In case of Goran Cincovic v Blenners Transport Pty Ltd, Supreme Court of Queensland [2017], the employers were not notified or trained regarding their duties within the workplace and this gives rise to the occurrence of workplace hazard. In addition to this, Joyce et al. (2016) added that the safety managers also need to train their employees regarding machine operation.

Application

In case of The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017], the employers were not properly trained regarding machine operation and this subjected to workplace accidents. Section 165 of WHS Act 2011 also mentions the powers and duties of the WHS inspectors. The Federal government of Australia has given power to these inspectors to make inquiries to the operating managers regarding their workplace. They even have right to take photographs of their workplace without seeking permission from the managing director of the workplace. In addition to this, Section 167 of WHS Act 2011 also states that magistrate could even issue for a search warrant in case they are not satisfied with the operating decision of the workplace. Therefore, Bolt should have allowed these WHS officers from visiting the incident site.      

Conclusion 

 Bolt had no right to prevent the WHS officers from inspecting the site of incidence within the workplace. These officers even insisted on visiting the site of incidence however, they were prevented by Bolt. He wanted to put the safety guards back on the machine in order to show that he is not responsible for the occurrence of such an incident. Therefore, it could be said that he violated section 164, 165 and 167 of WHS Act 2011 that clearly suggests that every officer have right to enter and inspect the workplace sites without seeking permission from the operating managers. Therefore, based on this act, managing director should penalise Bolt and convict him for his violation of rights. 

The managing director, Randall Rattle informed the Department of Defense along with the prime contractor regarding a contract related to the incident. Later on, he received a formal letter addressing WHS Verification Activity. The letter also mentioned him that the officers would carry out an investigation specifically regarding machine guarding, emergency procedures as well as manual handling. The managing director had no idea regarding the cause behind this verification regarding machine handling and their guarding. This clearly suggested that he did not receive any prior information regarding the incident that occurred in his workplace. The safety manager did not inform him regarding the accident and therefore, he had no idea regarding the requirement of this verification. Rattle wanted to understand the necessity of this verification from his lawyer and safety manager.

Section 165 of WHS Act 2011 states that every officer has right to inspect their workplace without any permission. Furthermore, Section 167 of WHS Act 2011 also states that any magistrate could send search warrant to the managing director in case they find any sort of unlawful activities within the workplace.

Conclusion

Bill Bolt should have informed the managing director regarding the occurrence of the incident. Joyce et al. (2016) added that operating manager should inform their hierarchies regarding any workplace accidents. In case of Beven v Brisbane Youth Service Inc [2017], the employers have not informed their hierarchy regarding an accident that occurred in their workplace thereby violating the rules of the WHS Act 2011. Straker et al. (2014) opined that it is also the duty of the managing director to monitor the activities of his employers. It is crucial to analyse each and every activity performed within the working premises by the employees. Therefore, in this case, Bill should notify Dinge's accident to his managing director. Even the managing director should have known the occurrence of the accidents by ensuring a regular surveillance of his employers. Boyle & Wallis (2016) opined that managers should ensure proper and safe functioning of all the machine parts. A routine check of machine handling is essential for any engineering organisations as malfunction could be hazardous to health (Healy et al. 2016).  

In this case, Randell Rattle did not ensure routine check-up of all the machine parts. Furthermore, it has also been observed that he wanted justification for WHS verification activity in his organisation. According to the WHS guidelines, a manager has no right to inquire WHS verification rights. Thus, it can be said that the managing director was not well aware of the guidelines of WHS Act 2011. Under no circumstances, managing director could question or seek justification regarding the visit of WHS officers and they have full right to investigate any workplace after any workplace hazard. Hadgraft et al. (2016) commented that every employer should be provided with proper training regarding the legal obligations and WHS policies while working into any engineering site. The operating managers along with their directors should take proper care of every machine within their workplace to ensure employee security.

Conclusion

Managing director of any company must be well-aware of WHS policies and their guidelines. In this case, Rattle had no right to inquire his lawyer and safety manager behind the cause of visit of these WHS officers. Apart from this, he was also liable to ensure routine checkup of every machine parts. As per the Section 27 of WHS Act 2011, officers have a duty to take care of their machine parts on a regular basis. These officers should ensure that every machine parts have their safety guard in order to ensure proper safety and security of their employees. Therefore, it is the responsibility of these managers to take proper care of their employer's health and ensure safety of their lives within working premises.  

Case Study Element 2

Mrs Ruby Rattle, Chief Operating Officer was not satisfied with the performance of Dingle. After occurrence of the incident, Dingle returned to work within three months and therefore, his performance rate was quite slower than other staff members. Due to the performance review contract, she was not satisfied with the rate of performance of Dingle and therefore, she wished to terminate Dave Dingle and appoint another more efficient worker instead. She even informed the management that Dingle could not actively participate in his work after returning from his accident. Dingle has succumbed to behavioural issue and he lost his positive attitude towards work. Therefore, Ruby has arranged a permanent termination letter along with one month notice to Dingle and he will not be allowed to work in his office in future.

Section 39 of Equality Act 2010 forbids any sort of discrimination within workplace. Every employee should be treated based on their skills and intellect (Equality Act, 2010). They must not be discriminated based on their physical capabilities. Furthermore, this section of the Equality Act 2010 also states that employees should be recruited based on their skills and intellect.  

Ruby Rattle should not discriminate Dingle based on his capabilities and disability. The incident has greatly affected the mental state of the employee. Poscia et al. (2016) commented that recruitment of employees must be carried out based on the education and knowledge. Therefore, in this case, Ruby should not terminate Dingle from his position. Ruby was not satisfied with the performance rate of Dingle and therefore, she planned to terminate him from his job role. Dingle had lost two of his fingers and additional two fingers were amputated. Therefore, this incident has traumatised his mental state and he would require some time to overcome his situation. Ruby along with the managing director should accompany him in this situation and encourage him to perform well. In order to increase the profitability rate, Ruby decided to terminate him from his position within the company. In addition to this, Dingle’s positive attitude has been affected by the incident and therefore, he requires some time for complete recovery from his state of mind. Pescud et al. (2015) commented that after any workplace hazards, the employers and managers need to take care of the affected employee.

In this case, both Ruby, as well as Rattle, needs to take care of the health of their employees. They need to monitor the activities of every employee and even ensure safety of the lives of their employees. In case of Robinson v Cape York Hospital and Health Service [2017], the employers were humiliated, mistreated and undermined by their managers within their workplace. This activity of mistreatment has overall affected the mental state of these employees. Similarly, in order to elevate the rate of productivity, Ruby had planned to terminate Dingle from his position and recruit another more efficient employee. The managing director and chief manager need to ensure proper health and safety of their employees. Based on this Equality Act 2010, they could not terminate employment of any worker based on his physical capability.     

Issue

Conclusion 

Ruby should not have terminated Dingle from his position due to his physical capability. He should be provided with proper care and guidance in order to carry out his work. According to Equality Act 2010, employees should be recruited based on their education and skill. However, in this case, in order to increase the productivity and profitability rate, Ruby had prepared termination of Dingle since he is currently incapable of delivering job with high efficiency. He needs some time to accommodate his new physical position and change his behaviour. Therefore, the managing director, Rattle needs to look into this matter and allow Dingle to work within the company. 

Reference List

Books

Allen, R. W., Porter, L. W., & Angle, H. L. (2015). Organizational Dynamics and Intervention: Tools for Changing the Workplace: Tools for Changing the Workplace. Abingdon: Routledge. Retrieved from: https://www.taylorfrancis.com/books/9781317463405

Antonsen, S. (2017). Safety culture: theory, method and improvement. CRC Press. Retrieved from: https://www.nyt-om-arbejdsliv.dk/images/pdf/2010/nr1/tfa1_2010_109-111.pdf

Bibby, P. (2017). Personal safety for social workers. Abingdon: Routledge. Retrieved from: https://www.taylorfrancis.com/books/9781351911818

Mital, A. (2017). Guide to manual materials handling. Florida: CRC Press. Retrieved from: https://www.taylorfrancis.com/books/9781351443630

Cases

Beven v Brisbane Youth Service Inc [2017] QCA 211

Colwell v Top Cut Foods Pty Ltd ACN 010 650 281 [2018] QDC

Deans v Maryborough Christian Education Foundation Ltd [2018] QDC 123

Goran Cincovic v Blenners Transport Pty Ltd, Supreme Court of Queensland [2017] QSC 320

Robinson v Cape York Hospital and Health Service [2017] QSC 165

The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103

Journals

Abubakar, U. (2015). An overview of the occupational safety and health systems of Nigeria, UK, USA, Australia and China: Nigeria being the reference case study. American Journal of Educational Research, 3(11), 1350-1358. Retrieved from: https://www.researchgate.net/profile/Usman_Abubakar10/publication/320409434_An_Overview_of_the_Occupational_Safety_and_Health_Systems_of_Nigeria_UK_USA_Australia_and_China_Nigeria_Being_the_Reference_Case_Study/links/59e36f2baca2724cbfe3a81e/An-Overview-of-the-Occupational-Safety-and-Health-Systems-of-Nigeria-UK-USA-Australia-and-China-Nigeria-Being-the-Reference-Case-Study.pdf

Bailey, T. S., Dollard, M. F., & Richards, P. A. (2015). A national standard for psychosocial safety climate (PSC): PSC 41 as the benchmark for low risk of job strain and depressive symptoms. Journal of occupational health psychology, 20(1), 15. Retrieved from: https://www.researchgate.net/profile/Maureen_Dollard/publication/267743192_A_National_Standard_for_Psychosocial_Safety_Climate_PSC_PSC_41_as_the_Benchmark_for_Low_Risk_of_Job_Strain_and_Depressive_Symptoms/links/5770ea4d08ae6219474a2e16.pdf

Boyle, M. J., & Wallis, J. (2016). Working towards a definition for workplace violence actions in the health sector. Safety in health, 2(1), 4. Retrieved from: https://safetyinhealth.biomedcentral.com/track/pdf/10.1186/s40886-016-0015-8

Hammer, L. B., Johnson, R. C., Crain, T. L., Bodner, T., Kossek, E. E., Davis, K. D., ... & Berkman, L. (2016). Intervention effects on safety compliance and citizenship behaviors: Evidence from the work, family, and health study. Journal of Applied Psychology, 101(2), 190. Retrieved from: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4564872/

Rule

Hofmann, D. A., Burke, M. J., & Zohar, D. (2017). 100 years of occupational safety research: From basic protections and work analysis to a multilevel view of workplace safety and risk. Journal of Applied Psychology, 102(3), 375. Retrieved from: https://goal-lab.psych.umn.edu/orgpsych/readings/16.%20Occupational%20Health%20and%20Safety/Hofmann,%20Burke,%20&%20Zohar%20(2017).pdf

Joyce, S., Modini, M., Christensen, H., Mykletun, A., Bryant, R., Mitchell, P. B., & Harvey, S. B. (2016). Workplace interventions for common mental disorders: a systematic meta-review. Psychological medicine, 46(4), 683-697. Retrieved from: https://pdfs.semanticscholar.org/02fe/c9f50434dd31b4ac1d4426f4cd04408f4e3f.pdf

Ndjoulou, F., Desmarais, L., & Pérusse, M. (2015). Employer Responsibility for Occupational Health and Safety: Challenges, Issues and Approaches. Journal of Management, 3(1), 1-8. Retrieved from: https://s3.amazonaws.com/academia.edu.documents/42058711/Ndjoulou_et_al__2015.pdf?AWSAccessKeyId=AKIAIWOWYYGZ2Y53UL3A&Expires=1537957850&Signature=jx8Hnnox4DTiLcQMbTpYRynD8zI%3D&response-content-disposition=inline%3B%20filename%3DEmployer_Responsibility_for_Occupational.pdf

Straker, L., Healy, G., Atherton, R., & Dunstan, D. (2014). Excessive occupational sitting is not a" safe system of work": time for doctors to get chatting with patients. Medical Journal of Australia, 3, 138-140. Retrieved from: https://www.mja.com.au/system/files/issues/201_03/str00037.pdf

Underhill, E., & Rimmer, M. (2015). Itinerant foreign harvest workers in Australia: the impact of precarious employment on occupational safety and health. Policy and Practice in Health and Safety, 13(2), 25-46. Retrieved from: https://dro.deakin.edu.au/eserv/DU:30080149/underhill-itinerantforeign-2015.pdf

Online Articles

Haas, E. J., & Yorio, P. (2016). Exploring the state of health and safety management system performance measurement in mining organizations. Safety science, 83, 48-58. [Online] Retrieved from: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4725603/

Hadgraft, N. T., Brakenridge, C. L., LaMontagne, A. D., Fjeldsoe, B. S., Lynch, B. M., Dunstan, D. W., ... & Lawler, S. P. (2016). Feasibility and acceptability of reducing workplace sitting time: a qualitative study with Australian office workers. BMC public health, 16(1), 933. [Online] Retrieved from: https://bmcpublichealth.biomedcentral.com/articles/10.1186/s12889-016-3611-y

Healy, G. N., Goode, A., Schultz, D., Lee, D., Leahy, B., Dunstan, D. W., ... & Eakin, E. G. (2016). The BeUpstanding Program™: Scaling up the Stand Up Australia Workplace Intervention for Translation into Practice. AIMS public health, 3(2), 341. [Online] Retrieved from: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5690359/

Moyo, D., Zungu, M., Kgalamono, S., & Mwila, C. D. (2015). Review of occupational health and safety organization in expanding economies: the case of Southern Africa. Annals of global health, 81(4), 495-502. [Online] Retrieved from: https://www.sciencedirect.com/science/article/pii/S221499961501214X

Pescud, M., Teal, R., Shilton, T., Slevin, T., Ledger, M., Waterworth, P., & Rosenberg, M. (2015). Employers’ views on the promotion of workplace health and wellbeing: a qualitative study. BMC public health, 15(1), 642. [Online] Retrieved from: https://bmcpublichealth.biomedcentral.com/articles/10.1186/s12889-015-2029-2

Poscia, A., Moscato, U., La Milia, D. I., Milovanovic, S., Stojanovic, J., Borghini, A., ... & Magnavita, N. (2016). Workplace health promotion for older workers: a systematic literature review. BMC health services research, 16(5), 329. [Online] Retrieved from: https://bmchealthservres.biomedcentral.com/articles/10.1186/s12913-016-1518-z

Website

Equality Act (2010). Equality Act 2010. Retrieved from: https://www.legislation.gov.uk/ukpga/2010/15/part/5/chapter/1/crossheading/employees on 12th July 2018

Work Health and Safety Act (2011). Work Health and Safety Act. Retrieved from https://www.legislation.gov.au/Details/C2017C00305 on 15th July 2018