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Occupational Health: Safety and Human Resources Law Report (Assessment)

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Updated: Jan 2nd, 2020

Introduction

Professional development and management have constantly been among the hotly contested matters by organisations across the globe for decades now, and since all are equally paramount to the success of businesses, there has been considerable concern on the same.

For any organisation to rank among top achievers of corporate growth and champions of corporate social responsibility, issues concerning employee welfare have been key contributors to the achievement.

Cases of spates of suicides, injuries, or even accidental fatalities due to poor organisational management and lack of concern on employee welfare have been on recurrent discussions, consequently leading to the development of workforce-related directives and policies by labour officials globally.

Occupational Health and Safety Laws and Human Resources Laws have been major contributors of hope in the workforce affairs. Central to developing understanding on such policies, this study provides an analysis of case summaries concerning Occupational Health and Safety Law and Human Resources Law.

Koehler v Cerebos (Australia) Ltd [2005] HCA 15

Decision from the highest court

The approach adopted by the Full Court in this appeal was in accordance with the principle stated in Fox v Percy [30]. In doing so, their Honours made no errors. The appeal should be dismissed with costs.1

One of the profound and renowned Australian cases and that seems crucial to Occupational Health and Safety Law is the controversial case of Koehler v Cerebos (Australia) Ltd [2005] HCA 15. This case involved the issue of work stress and negligently inflicted psychiatric illnesses.

An employee served as a permanent sales representative until she was retrenched. Upon retrenchment, she agreed with her employer to re-employ her on a part time work basis of three working days per week. During the part-time employment, she noticed sudden workload and thus complained to the management and she suggested the reduction of her work coverage within the operational stores, but they ignored.2

Consequently, the employee developed psychiatric illness due to workload. She filed a case against the employee for breaking common law duty of providing safe working environment. However, joint high court decision concluded that it was beyond employer’s ability to foresee psychiatric injury in the employee and only a psychiatrist could, and thus the employee’s claim over her employer’s negligence failed.3

Similar/related cases

Some of the vital cases that involved similar psychiatric injuries and illnesses and their foreseeable circumstances include [2005] HCA 15 (Unreported, McHugh, Gummow, Hayne, Callinan, and Heydon JJ, 6 April 2005), and most recently, the case of Finlay v State of Western Australia [2012] WADC 132.

Beginning with HCA 15 (Unreported, McHugh, Gummow, Hayne, Callinan and Heydon JJ, 6 April 2005) a great similarity is evident to the case of Koehler v Cerebos.

Following the case of McHugh and friends, foreseeable psychiatric-related health conditions in individuals’ inner feeling and more unfortunately using simple assumptions seem complicated than how people consider it.

In a joint judgment of intellectual judges, the jury concluded that an employer recruiting an employee to perform certain duties must presuppose the absence of evident signs indicating the possibility of an underlying psychiatric injury, with the intention of employee considering his/her ability to accomplish the stated tasks.4

The case of Finlay v State of Western Australia is one among the cases that elicited controversies within the District Court of Western Australia.5 Judges in this case employed the decision employed by the High Court in the case of Koehler v Cerebos.

Several issues emerged from the court’s decisions made prior to the circumstances of the case of Finlay v State of Western Australia.6 According to the courts final summary, an employer may not possess the liability of any psychiatric injury of an employee concerning the performance of a given task originally specified within the job contract.

Secondly, “there must be a presumption that an employer engaging any employee to perform stipulated duties has the obligation to assume the absence of evident signs of likelihood of psychiatric injury”.7 Thirdly, judges deem unnecessary for employers to foresee psychiatric injuries.8

As stipulated in the law of law of tort, “employers should ensure that their relationship with employees leads not to psychological distress in workers and employers must not breach their duty of care unless on an occurrence of a situation that requires reasonable intervention.”9

Journal, newspaper discussing Koehler v Cerebos

The case of Koehler v Cerebos was extroverted and it led to several literal discussions that affected several governmental and no-governmental organisations.10 In the journal of modern Australian law of mental harm, outlined major points that concerned the case of Koehler v Cerebos.

Providing important facets of the case, Mendelson, discussed important matters concerning the employer’s negligence and circumstances leading to reasonable ‘Foreseeability’ in the case of ‘psychiatric injuries’ in the workplace.11

Mendelson further discussed the elements of ‘liability of psychiatric injuries’ as well as issues of duty of care and ‘breaching of contractual agreements’ between employers and employees. More importantly, this journal provided impressive coverage of information about contextual cases that have remained imperative within courts before and after the case of Koehler v Cerebos.

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

Decision from the highest court

“The appeal should be allowed. The orders of the Court of Appeal of the Supreme Court of Queensland should be set aside.

In lieu thereof this Court should order that the appeal to the Court of Appeal be dismissed save for the deletion from the orders of Derrington J, dated 1 June 1994, of the words “with costs, including reserved costs, if any, to be taxed” in respect of the order dismissing the plaintiff’s action against the third defendant. The appellant should pay the respondent’s costs of the appeal to this Court.”12

Another significant case that may reflect the policies governing Occupational Health and Safety Law is the case of Northern Sandblasting Pty Ltd v Nicole Anne Harris of 1997. The case entails the landlord, tenant, and an electrical contractor. The landlord bought a house electric property, which the local electricity supplier and the electric board examined the installation position in July 1984.

It developed mechanical problems in November 1986 and Mr. Briggs, who was the landlord’s customary electrical contractor, repaired a stove and a refrigerator in the building, which Mr. and Mrs. Harris occupied as tenants in 12 December 1986.

After first dismissal of the charges in the appellants favour, the respondent appealed in the Court of Appeal. The judges in the court of appeal remained in mixed opinions based on common law and statute.

Fitzgerald P. ruled in favour of the respondent through ‘special’ duty that the landlord breached the duty of care and that he/she was required to a safe environment for the tenants. McPherson JA dismissed this claim and argued on two bases: non-delegable duty and landlord’s house inspectional duty.13

Similar/related cases

Similar cases relating to negligence of duty and liabilities that have been a challenge to courts given the mysteriousness of situations are the cases of Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 233 ALR 200 and the case of Gration v C Gillan Investments Pty Ltd [2005] QCA 184.

The case of Leichhardt Municipal Council v Montgomery has a great correlation with the case of Northern Sandblasting Pty Ltd v Harris in the sense that they both involve the aspects of duty of care and negligence. The appeal was unsuccessful as the judge ruled that public road construction is risky only under certain negligence, though the road authority is not liable for negligence acts of the contractor.14

The case of Gration v C Gillan Investments Pty Ltd of 2005 is another significant case that involves negligence and duty of care. Judith Gration was the plaintiff/respondent and a tenant in support of her husband in this case trying to litigate Gillan Investments Pty Ltd, the defendant. On 6th August 2000, one of the treads of the front stairs slithered and made her fall thus causing bodily injury.

She filed a case at the district court to claim the damages over breaching of appellant’s duty of care as documented in Residential Tenancies Act 1994.

This act’s contractual and statutory provisions stated that the landlord should ensure that the premises are clean and as the tenant continues to live, the landlord must provide continual maintenance of the premises. The judge ruled in respondent’s favour by claiming that the landlord was responsible for conducting regular visual inspection maintaining standard repairs and thus liable for the tenant’s injuries.15

Newsletter related to the case initial case

The case of Northern Sandblasting Pty Ltd v Harris had attracted several legal firms that ended up articulating the judge’s decisions and conclusions in subsequent coverage. The United Kingdom’s residential tribunal bulletin of May 2001 articulated the issues of negligence and duty of care at length.

Residential tribunal bulletin summarises the cases related to negligence of a certain kind resulting from lesser or landlord’s negligence in the context of ensuring a safe environment for tenants and liabilities of injuries incurred in such cases.16

In this newsletter, relevant referral cases like Jones v Bartlett [2000] HCA 56, McAuliffe v HabgoodRT 99/14051, OSP 52146 & MisrachiSB/99/357, featured with significant information on the hearings, proceeding and decisions made by different judges. More importantly, it is important for contenders to understand that “joint and several liabilities of tenants withstand assignment of a tenant’s interest.”17

Czatyrko v Edith Cowan University (2005) 79 ALJR 839

Decision from the highest court

  1. The appeal should be allowed with costs.
  2. The orders of the Full Court of the Supreme Court of Western Australia made on 9 December 2002 should be set aside and in their place it should be ordered that the appeal is dismissed with costs.”18

Czatyrko v Edith Cowan University (2005) 79 ALJR 839 is another significant case that highlights the understanding of negligence and duty of care involving employer and employee and concerning occupational health and safety in Australian courts. Edith acquired an injury at work.

On believing the platform was raised, Edith stepped backwards only to notice that her presumptions were wrong and thus she fell down and acquired an injury. Brett George Jerzy Czatyrko was the appellant in this case while Edith Cowan University as the respondent where Czatyrko went to the court to take legal action against Edith’s negligence of duty of care.19

Within the premises, there were no beepers or oral warnings to notify workers. Occupier’s liability act (WA) and Occupational Safety and Health Act 1984 (WA) were in place during this moment. The respondent fruitfully appealed to the Supreme Court.

Three Supreme Court judges argued that the appellant (employer) failed to provide safe system of work, and thus under common law claim, they noted that the appellant failed to provide a warning device. They concluded that since ‘risk’ is a common issue in workplace, absence of warning breached employer’s duty of care and thus the appellant was liable for the injuries.20

Comparable cases

Among the comparable cases reflecting duty of care and disregard, AFS Catering Pty Ltd v Stonehill [2005] NSWCA 183 and Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 can fit this profile. The facts about the case AFS Catering Pty Ltd v Stonehill [2005] NSWCA 183 seem unambiguous.

The case of (30 May 2005), simply involves an employer (appellant) and an employee (claimant) with negligence of duty of care being the matter just like the case of Czatyrko v Edith Cowan University (2005) 79 ALJR 839.

Patricia Stonehill (respondent), sustained injuries at the workplace and went to sue AFS Catering Pty Ltd (appellant) for negligence of common law duty of care. In the high court of appeal, judges considered the decision of the district court to set aside the damage.21

Another significant court case that forms a replica of the conditions that accustomed the case of Czatyrko v Edith Cowan University (2005) 79 ALJR 839 is the case of Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99.

This case unfolded in 27 May 2008, when the appellant, Clint Pollard, proceeded to the court to sue Baulderstone Hornibrook Engineering Pty Ltd and Bilfinger Berger AG for alleged contributory negligence of duty of care. The plaintiff acquired injuries at the workplace after slipping on a wash bay of wet metal truck.

It was then a quandary whether it was due to employee’s lack of reasonable care of own safety or employer’s non-delegated duty of care for employees. Using common law, the judges concluded that the employee was guilty of contributory negligence in the circumstances that he exposed himself to a risk of injury that was reasonably foreseeable.22

Article about the initial case

Central to determining challenges affecting New South Wales Court of Appeal, the president of the court, Justice James Allsop sought to examine the recurrence of court related issues in this court, where much of the issues emerged.

The concern over the judgements concluding this case protracted from this angle when the president of the New South Wales Court of Appeal, Justice James classified the case of Czatyrko v Edith Cowan University under the contributory negligence section.23

However, the president noticed that judges had the obligation to make the correct judgement, though cases might have protracted from contradicting circumstance that make judgement complicated.

Using a general statement, President James highlights that, “contributory negligence requires more than mere inadvertence, inattention, or misjudgement”. From such statements, it is clear that cases within the negligence and duty of care and liabilities might lead to unfair judgement and a continual misjudgement if the initial cases act as referrals.24

Mayer v A.N.S.T.O. [2003] FMCA 209

Decision from the highest court

The Court declares that the respondent unlawfully discriminated against the applicant contrary to ss.7(1), 5(2), 14(2)(a) and 14 (2)(c) of the Sex Discrimination Act 1984 (Cth), by refusing to extend the applicant’s contract of employment for a period of more than one year, and by imposing a condition that the applicant work full-time following a period of maternity leave that the applicant could not accept, thereby leading to the constructive dismissal of the applicant.”25

The case of Mayer v Australian Nuclear Science and Technology Organisation [2003] FMCA 209 is another controversial human resource law related case. The case involves Mayer (an employee), who commenced to sue the employer, Australian Nuclear Science and Technology Organisation (ANSTO) (Mayer v A.N.S.T.O., 2003).

It entails gender discrimination in the workplace with the themes of family responsibilities, sex, and pregnancy. Mayer, a business development manager, requested 12-months maternity leave from her employer. Her three-year contract was to expire during the maternity period, but it was extended for one year.26

The claimant insisted that the employer discriminated her based on her pregnancy in contract extension as others enjoyed extensions of more than two years. The defendant breached several sections of Sex Discrimination Act 1984 (Cth) (“the SDA”) that was actively working by then. The jury concluded that the appellant unlawfully discriminated the employee and the former was charged.27

Analogous cases to this case

Several gender prejudice cases have existed and proven harmful to the human resources law and policies. The case of Fenton v Hair & Beauty Gallery Pty Ltd & Anor [2006] FMCA 3 and Cross v Hughes & Anor [2006] FMCA 976 are complete replica of the initial case.

Just like the case of Mayer v A.N.S.T.O., the case of Fenton v Hair & Beauty Gallery Pty Ltd & Anor carries important human resource laws and policies related facts as well as articulating important human rights, discrimination, and other related factors. It carries the facts about pregnancy and disability discrimination.

The story of this case involves an applicant, who falls sick while pregnant and is consequently sent home on her attendance to the workplace and later dismissed from work. The dilemma remains whether the dismissal resulted from pregnancy or disability. The defendants are found guilty and charged with discrimination offences and made to pay the case damages and case interests until judgement.

The case of Cross v Hughes & Anor is another replica of mistreatments resulting from discrimination and prejudice based on sexual discrimination at the workplace that violates human resource related laws. Melanie Cross, the case applicant, files a sexual harassment case against Justin Owen Hughes, Hokonui Enterprises Pty Ltd T/A, and Oakbank Insurance Services.

Melanie seeks a concession over the three respondents to pay her compensation for economic loss. The court finds the three respondents guilty of sexual felonies against Melanie and the judges conclude significant charges over the respondents.

They note that the first respondent, Justin Owen Hughes, is answerable for unlawful sexual harassment contrary to sections stipulated within the actively working Sex Discrimination Act 1984.

Article discussing the initial case

The legal analysis undertaken by Arnold Bloch Leibler has highlighted many facts pertaining to issues of gender biasness and disability related prejudice in an evaluation of employment & industrial relations. Important aspects related to court judgements in relation to the case of Mayer v Australian Nuclear Science and Technology Organisation feature in this article.

Leibler asserts, “A recent decision from the Federal Magistrates Court is a reminder to employers that requests to work part-time, based on family or carer responsibilities, warrant serious consideration.”28 This simple statement can reflect all the necessary facts that both employees and employers can better understand the issues concerning law and court processes.

Leibler presents manifold discussions covering gender discrimination in comprehensiveness and connects these circumstances with certain contemporary cases that have emerged after the initial case. He tactfully connects his arguments and uses this case as a referral to the issue of Inappropriate IT usage in certain companies.

Schiliro v Peppercorn Child Care Centre’s Pty Ltd [2000] QCA 18

Decision from the highest court

These proceedings relate to an incident which preceded application of the Work Cover Queensland Act 1996. Therefore, no consideration has been given in this case to arguable inconsistency between certain provisions in that Act, (especially s 312, s 313, and s 314) and the provisions of the Workplace Health and Safety Act that have been here considered.

Questions concerning the effect of these Acts in combination must await another day. [74] On the findings of the primary judge, the claim of negligence is not established and it fails. It is therefore unnecessary to consider quantum. [75] The appeal must be dismissed with cost.”29

Schiliro v Peppercorn Child Care Centre’s Pty Ltd QCA 18 of (2000) is among the recently debated cases in the Supreme Court of Queensland concerning occupational heath and human resource related laws and policies. The case involves a childcare assistant who sustains injuries at work while transferring sand to sandpit.

The case originated from District Court at Brisbane where an appellant, Schiliro Lisa, brought a claim against her employer Peppercorn Child Care Centres Pty Ltd., to the court after the aforementioned happenings.

The predicament here is whether the court made a mistake by failing to justify if the employer was liable to breaching of laws governing constitutional duty or was unable to identify the risk associated with manual handling.

After proper filing of an appeal in the Supreme Court of Queensland, the judges managed to make informed decisions based on the prevailing laws and acts.

However, the appellant’s case remained unsuccessful depending on the prevailing acts as stipulated below. On the judgement, the Supreme Court, which ruled based on the Workplace Health and Safety Act 1995, noted that the respondent did not breach any law of statutory duty under section 28(1) of this act.30

Interrelated cases

In relation to industrial law, safety, healthy, and work welfare, the breach of the case of Parry v. Woolworths Limited [2009] QCA 26 and the case of Griffiths v State of Queensland [2011] QCA 57 can best suit this profile. The case of Parry v. Woolworths Limited is among the contemporary cases within the Supreme Court of Queensland’s court of appeal.

Akin to the case of Schiliro v Peppercorn Child Care Centre’s Pty, the case carries the concept of statutory powers and duties that involved breaching of statutory duty in the context of industrial laws and safety.

Mervyn John Parry, an employee, proceeds to the Supreme Court to file a case against Woolworths Limited, the employer, after sustaining a lower back injury at the workplace. Foreseeability of the risk remained questionable though the appellant managed to win the case against the defendant who finally took the liabilities.31

The same issue prevails in the 2011 case of Griffiths v State of Queensland when an appellant, who is a nurse employee, went to court to sue Nambour General Hospital. The appellant, Tracey Leanne Griffiths, proceeds to the court to take a legal action against her employer after acquiring a back injury while lifting medical equipment from a steel trolley.

The quandary here remains whether the appellant failed to commence the proceedings against the employer for breaching statutory duty and actions of negligence, or whether the employer managed to discharge its operations in respect to the section Workplace Health and Safety Act 1995 (Qld).

In addition, it remained controversial whether the employer exercised its obligations in sensible precaution and proper diligence or even if the judges made mistakes in finding the employer legally irresponsible for the liabilities in the case.32

Article discussing the initial case

A comprehensive coverage featured in the Annual Report of the President of the Industrial Court of Queensland, where a broad discussion of industrial laws, policies, and related matters prevailed. 33 Apart from providing a succinct summary of the entire case of Schiliro v Peppercorn Child Care Centre’s Pty Ltd, the document examined and provided a broad discussion and summaries of cases relating to the Schiliro.

Reference List

AFS Catering Pty Ltd v Stonehill (2005) NSWCA 183

Allsop, J. Recurring issues in the New South Wales court of appeal (2012). Web.

Cross v Hughes & Anor (2006) FMCA 976.

Czatyrko v Edith Cowan University (2005) 79 ALJR 839

Fenton v Hair & Beauty Gallery Pty Ltd & Anor (2006) FMCA 3

Finlay v State of Western Australia (2012) WADC 132

Gration v C Gillan Investments P/L (2005) QCA 184

Griffiths v State of Queensland (2011) QCA 57

Industrial Court of Queensland, Annual Report of the President of the Industrial Court of Queensland (2009). Web.

Koehler v Cerebos (Australia) Ltd (2005) 15

Leibler, A.B. Employment & industrial relations (2003). Web.

Leichhardt Municipal Council v Montgomery (2007) HCA 6

Mayer v A.N.S.T.O. (2003) FMCA 209

Mendelson, D, ‘Modern Australian law of mental harm: parochialism triumphant (2005) 13 Journal of law and medicine 164-172.

Northern Sandblasting Pty Ltd v Harris (1997) 39

Parry v. Woolworths Limited (2009) QCA 26

Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) NSWCA 99

Residential Tribunal Bulletin, A fair hearing according to law (2001). Web.

Schiliro v Peppercorn Child Care Centre’s Pty Ltd (2009) QCA 18

Unreported, McHugh, Gummow, Hayne, Callinan and Heydon (2005) 15

Footnotes

1Koehler v Cerebos (Australia) Ltd (2005) 15

2 Ibid. 15

3 Ibid.

4McHugh, Gummow, Hayne, Callinan and Heydon (2005) JJ, 6 April 2005

5 Finlay v State of Western Australia (2012) WADC 132

6 Ibid

7 Mendelson, D, ‘Modern Australian law of mental harm: parochialism triumphant’ (2005) 13 Journal of law and medicine 164-172

8 Finlay v State of Western Australia (2012) WADC 132

9 Mendelson, 117

10Ibid. 164

11Ibid. 172

12 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

13Ibid

14 Leichhardt Municipal Council v Montgomery (2007) HCA 6

15 Gration v C Gillan Investments P/L (2005) QCA 184

16 Residential Tribunal Bulletin, A fair hearing according to law (2001)

17 Ibid

18 Czatyrko v Edith Cowan University (2005) 79 ALJR 839

19 Ibid

20 Ibid

21 AFS Catering Pty Ltd v Stonehill [2005] NSWCA 183

22 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99

23 Allsop, J. Recurring issues in the New South Wales court of appeal (2012)

24 Ibid

25 Mayer v A.N.S.T.O. [2003] FMCA 209

26 Ibid

27 Ibid

28 Leibler, A.B. Employment & industrial relations (2003)

29 Schiliro v Peppercorn Child Care Centre’s Pty Ltd [2000] QCA 18

30 Schiliro v Peppercorn Child Care Centre’s Pty Ltd [2000] QCA 18

31 Parry v. Woolworths Limited [2009] QCA 26

32 Griffiths v State of Queensland [2011] QCA 57

33 Industrial Court of Queensland, Annual Report of the President of the Industrial Court of Queensland (2009)

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