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Pay attention to work habits

ARE your employees working within their capabilities?

The ACTU’s campaign on reasonable working hours has focused attention on the hours employees are actually working and how much work an employer can reasonably ask an employee to do. Just how far do an employer’s obligations go?

Recent cases show that employers who fail to adequately monitor working hours, fail to monitor the capabilities of employees, fail to control workloads, or who disregard medical advice might be exposed to prosecution or to claims for compensation or other remedies.

Recently, an employee who was sacked for working in an unsafe manner after working 18 hours straight won his unfair dismissal claim against his employer. The employee was an electrical linesman and failed to perform a routine polarity test after completing repairs at residential premises. The test was necessary to ensure that the repairs were safe. The oversight was discovered when a person at the residence received a 240-volt electrical shock after touching a water tap.

The employer had not pressured, asked or required its employee to work those hours. The linesman had chosen to do so because he felt the needs of the business required him to do so. The Australian Industrial Relations Commission found that the employer’s system of work had allowed the employee to work “unconscionably long hours” and it was obvious that this impaired the employee’s skills, judgment and concentration. The dismissal was harsh and the employee was reinstated.

Long hours of work are recognised as a cause of fatigue. Employers need to take care that they are not breaching their duty of care to provide a safe system of work when there is an unspoken expectation that employees work regular overtime, or very long hours day after day. Where a job requires higher levels of concentration, coordination or strength to carry it out safely, steps must be taken to ensure the employee is not overtired or unfit to continue working.

As well as ensuring employees have the skills and competence to perform their tasks safely, employers need to put systems into place to manage fatigue. Employers also need to provide training on identifying the signs of fatigue and the systems put in place to manage this.

Employers also should ensure that they pay close attention to medical advice about how an employee is coping with work. Employers who continue to place demands on employees who have trouble coping with an expanded role may find legal action is taken against them.

In another recent case, a former supervisor in an abattoir was awarded almost $600,000 in damages when his employer disregarded medical advice that the supervisor should take two months off work to be treated for anxiety and depression.

The employee’s anxiety and depression was due to his inability to cope with the amount of work required and by the difficulties he had performing his supervisory responsibilities.

The employee’s role had grown with the expansion of his employer’s operations. Initially, he was a slaughterman and supervisor responsible for about 15 employees. As the operations increased in size and complexity, he became involved in overseeing certain quality controls.

When the employee took his medical certificate to his employer, he was told he was still required to come back to work, as there was no one to replace him. When he returned to work his symptoms worsened noticeably. After about two weeks he walked out and did not come back.

The Court found that the employee was a fairly uncomplicated person with limited eduction. His life had been one of physical work. He was not, by nature, equipped to deal with the ambiguities and stresses of his position. The employer was negligent in that the employer either refused the employee the time off work he needed or sought to persuade him not to take the time off work. The Court also found that, if he had been given time off work, his major depressive disorder would not have developed.

Useful guidelines for employers covering some of these issues have been developed by Worksafe Western Australia. Reducing the Risk of Fatigue at Workplaces is available on the internet at www.safetyline.wa.gov.au

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