A labour hire employer was found liable for an unsafe system of work. The pace of work was unsafe and not as depicted in the training video, and the training provided was inadequate given the language barrier.
- Whether the event alleged by the plaintiff actually occurred.
- Whether the plaintiff actually suffered an ongoing impairment a training video containing a safe system of work represented the usual pace and manner of work.
- Whether a training video containing a safe system of work represented the usual pace and manner of work.
- Whether the plaintiff’s residual earning capacity would be restored.
The plaintiff, an Afghan refugee with limited English and educated to a sub-high school level, was employed by the first defendant, AWX. He was placed to work on 30 May 2010 at a meatworks in Rockhampton owned by the second defendant, Teys Australia, pursuant to a labour hire contract. The plaintiff worked in the paunch room.
On 5 July 2010, while the plaintiff was working at speed, a bull paunch was incorrectly hooked in front of him causing him to have to turn and reposition it. The plaintiff was required to lie across a table to reach the paunch and while doing so, felt pain in his back and buttock.
The plaintiff alleged that the system of work was unsafe and that there were precautions that could have been in place that were not utilised by the defendants. It was also alleged that a training video supplied by the defendants did not represent the usual pace and manner of work. The defendants denied that the injury occurred as alleged, argued that there was no ongoing impairment, and attempted to discredit the plaintiff’s evidence.
The Decision at Trial
The court did not accept that the plaintiff was dishonest when giving his evidence and found that the events occurred as the plaintiff described and that he suffered an ongoing impairment. The court explained the inconsistencies in accounts given by the plaintiff during medical consultations, as being due to misunderstandings resulting from language barriers, cultural differences, and a poor recollection of events.
Regarding the training video, the court found the defendant’s reliance on the pace of work shown was disingenuous. The court accepted the evidence of Mr Kahler, an engineering specialist in WH&S, who concluded that the work had to be completed at a much faster pace than shown, due to the quantity of paunches processed daily, and required awkward posturing that resulted in the plaintiff’s injury. Workers were also not properly trained in how and when they were entitled to exercise their own judgement in deciding whether to use the STOP button to control the pace of the chain of paunches. Training using only demonstration was also found to be inadequate where there were language barriers, and was far below the level of instruction required. The court was not asked to make findings on apportionment of liability between Teys and AWX.
It was held that while it was unlikely that the plaintiff would have continued working in the meatworks due to pre-existing shoulder and back issues, his lack of English and limited skill base meant he would have maintained work of a manual nature for as long as possible, and is now highly unlikely to return to work of that type. The court allowed the future loss of earning capacity on the grounds that he would eventually find lighter work.
Implications for you
It is important for both labour hire employers and host employers operating processing plants to ensure that not only a system of work is safe, but that it is being carried out in an appropriate manner and that employees are aware of, and trained to use, safety precautions. It is also vital to remember that defendants bear the onus of establishing the presence and impact of any pre-existing conditions.