“Careless” worker cleared of serious and wilful misconduct

 

A worker who “carelessly” operated a cigarette lighter inside a fume-filled container, causing a massive explosion which seriously injured the worker and his colleague, is entitled to worker’s compensation despite his questionable conduct, the Queensland Industrial Relations Commission has held.

Under the Workers Compensation and Rehabilitation Act 2003, a worker who sustains injuries as a result of his or her “serious and wilful” misconduct is generally prevented from receiving compensation.

However, the Commission was not satisfied in this case that the worker’s conduct was serious or wilful.

No evidence that worker knew of danger

Despite the serious consequences of the employee’s decision to operate the cigarette lighter in the unlit container to search for his tools, there was insufficient evidence to suggest that the worker “knew, or should reasonably have known, that there were unusually strong fumes in the… container”.  Another worker had made a “general comment” about the presence of strong fumes, but the Commission accepted the injured employee’s evidence that he was not within earshot at the time.

Lack of safety system or warnings

Furthermore, at the time of the incident the employer did not have any safety system or warning signs in place to control the risks associated with fumes inside the containers.  The worker had undergone basic training in respect of confined spaces, but this was insufficient to alert him to the dangers associated with operating a naked flame in or around the container.

As such, the employer’s arguments that the worker had intended some “mischief” and had ignored the “obvious and inherent risks” were rejected.

Implications for employers

This decision reiterates yet again the importance of having appropriate measures in place to protect workers from injury.  If a worker engages in careless, unsafe conduct but does not deliberately flout an established safety system, the courts are less likely to consider that the worker’s conduct was wilful.  Moreover, implementing a comprehensive safety regime is likely to have the additional benefit that workers will be less likely to engage (or be able to engage) in careless and unsafe behaviour.

 

Reproduced with the permission of Brad Petley, Partner of Holman Webb Lawyers Brisbane, in accordance with their terms and conditions of use.

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