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Employee Disobedience no Defence Against WHS Breach


A timely reminder for employers that employee disobedience is not a defence to a breach of duty of care under workplace health and safety laws.

After receiving instructions from the workshop leading hand to dismantle and clean an old forklift gearbox housing using a spanner, the teenager, took it upon himself to use brake cleaner as a degreaser (a purpose of which it is not intended) and a rattle gun to dismantle the gearbox.

The Court head that the teenager had been previously advised not to use brake cleaner in this way as it was the incorrect product to use, that doing so could be was dangerous, and that the brake cleaner was a flammable substance that could be ignited by a spark.  He was further instructed, by the workshop leading hand not to use the rattle gun and to continue to use a spanner.

Despite receiving these instructions, he ignored all of these instructions and after the rattle gun sparked and ignited the brake cleaner, it caused an explosion.  As a result of the explosion, serious burns were sustained to his face, right arm and fingers and subsequently required several artificial skin grafts.

What are your obligations for work trials as a PCBU?

Under workplace health and safety legislation, a person conducting a business or undertaking (PCBU) holds a primary duty of care which is to ensure, so far as reasonably practicable, the health and safety of workers whilst at work, including the disobedient ones.

A PCBU must take into consideration the possibility of thoughtlessness, inadvertence or carelessness on the part of a worker, when looking at what can be done to avoid risks to health and safety in the workplace.

In this case, Hubtex had failed to uphold its duty of care to the teenager through a number of failures in their procedures, being:

  • A failure to ensure the safe use of the brake cleaner including not providing relevant safety information or to provide training on the safe use of the brake cleaner product;
  • Lack of appropriate labelling on the brake cleaner, including hazard pictogram or hazard statement;
  • No safe work procedure for using the brake cleaner; and
  • No risk assessment conducted on tools brought into the workplace by workers and a failure to have an operator’s manual for the tools available in the workshop.

Although the teenager’s failure to comply with the instructions were a mitigating factor, it was only to a limited degree.

The steps that Hubtex could have taken to eliminate the risk were found to be simple, well known, and inexpensive. A failure to implement the risk mitigation strategies mentioned above have cost Hubtex much more than the cost of simply implementing these strategies.

What are the main considerations?

Staying on top of employer obligations can be a challenge, however the stakes are high if you don’t. It is important to remember that your health and safety policies and procedures should not be something you set and forget allowing for compliancy to set in. Procedures and risk management processes should be reviewed and updated periodically or whenever there is a change to work practices, environment or responding to workplace incidents or concerns.

Where to get help

The MBA IR and Legal Team are here to help you and your business should you need to refresh your health and safety policies or procedures.

Need help getting started feel free to get in touch to discuss with one of our team members on 02 6175 5900.