An employer’s duty is to provide a safe work environment for employees and external stakeholders. This means employers have a duty to select capable employees, as well as manage employees who may be prone to workplace violence.
This duty was considered in a case decided in Queensland recently (Colwell v Top Cut Foods Pty Ltd [2018] QDC 119) in which a former employee of a meat-processing company was awarded nearly $600,000 in damages for a workplace assault.
Both the attacker and the victim gave evidence they had spoken with their manager about their relationship and had asked to be moved away from one another in the workplace. The employer’s defence was that they were surprised when the assault happened, and it was not a foreseeable incident. The defence was flawed as there were a number of warning signs, including the requests for the attacker and the victim to be moved away from each other.
There was also evidence that a manager would make jokes concerning the attacker, along the lines of “have you killed anyone yet?” Jokes of this kind make it difficult to argue that the workplace violence was not foreseeable.
If this type of incident could be foreseen it would be a key issue, as well as causation. The courts would look at what the employer could have done differently, and whether the assault could have been avoided. In the Colwell case, the nature of the workplace was that it would have been possible to move the two employees, which the court found would have prevented the assault.
While this case arose from a personal injury claim, it is important to remember that those who engage or control workers also have obligations under Work Health and Safety legislation.
There have been a number of WHS prosecutions arising out of workplace assaults in the form of pranks, and this is no defence to a criminal prosecution under WHS legislation to say the assailant thought it was funny at the time.
This case is a useful reminder that physical risks, whether in the form of a hazard or an individual, need to be considered.