I recently read a newspaper article concerning the decision of an owner of a bottle shop in Cairns to permanently close the shop’s doors due to safety concerns in respect of employees with the bottle shop having been targeted in a spate of robberies.
Whilst there may have been other economic considerations concerning the permanent closure of the shop, the owner commented that the reason for the shop’s closure was “it’s just not worth putting up with this safety risk and all the theft anymore”.
In the context of the duty of care that is owed by an employer to an employee, it is interesting to explore what may be reasonably required of an employer in response to a known or foreseeable risk to their employees.
In very broad terms, the content of the duty of care owed by the employer to an employee includes but is not necessarily limited to:
- The duty to provide a safe place of work;
- The duty to provide a safe system of work;
- The duty to provide proper and safe plant and equipment; and
- The duty to provide competent staff. [1]
Section 305B Workers Compensation Rehabilitation Act 2003 (Qld) sets out the following:
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless –
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding if a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things) –
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.
There is obviously no more burdensome precaution than the actual closing of a
business. One would think that the probability and seriousness of a potential injury would need to be extreme for a court to determine that the closure of the business was a required precaution to take against the risk of injury to the employee.
There are of course less extreme risks and less extreme precautions required to meet such risks which form part of an employer’s daily consideration of the operation their
business. What an employer is required to do, is to take reasonable steps to identify risks of injury to their employees, implement reasonable and appropriate precautions and systems to guard against such risks and regularly review and enforce such precautions and systems.
The duty of care owed by an employer to employees is not a duty to guarantee an employee’s safety. However, it is a high duty, and one which bears careful consideration by employers.
[1] McLean v Tedman (1984) 155 CLR 306
