Angus Macinnis, Director of Dispute Resolution at Stevens Vuaran Lawyers, discusses the recent case of Colwell v Top Cut Foods Pty Ltd  QDC 119 which serves as a costly reminder to employers to be mindful of the potential for physical assaults committed by employees on co-workers.
Employers’ duty of care to prevent workplace punch-ups
An employer’s duty to provide a safe system of work extends not just to the work we do, but also to the selection of those with whom we do it. This means that there is a duty to select capable employees, which extends to a duty to deselect (or at least, to manage) employees who may be prone to workplace violence.
This duty was considered in a case decided in Queensland in late June (Colwell v Top Cut Foods Pty Ltd  QDC 119), where a former employee of a meat processing company was awarded nearly $600,000 for damages arising from a workplace assault.
One of the plaintiff’s star witnesses (perhaps surprisingly) was the attacker. Both the attacker and the victim gave evidence that they had complained to their manager about their deteriorating relationship and asked to be moved away from one another in the workplace.
The employer’s defence was that the “everyone was surprised when the assault happened and it was not foreseen or foreseeable”. The problem with this defence was that there were a number of warning signs (including the requests made by both attacker and plaintiff to be separated).
There was also evidence that a manager was in the habit of making “jokes” concerning the attacker, “along the lines of “have you killed anyone yet?” or “have you bashed up anyone yet?” These “jokes” might have occasioned much hilarity in the workplace, but “jokes” of this kind do make it difficult to argue that workplace violence (in terms of bashing, if not killing) was not foreseeable.
Foreseeability will be the key issue in many cases – for example, in 2017, the NSW Court of Appeal considered a case where one worker for a labour hire company attempted to throw a co-worker off the roof of a building. The labour hire workers were working for Optus, which was sued by the worker as a result of the assault. Although the plaintiff succeeded at first instance, the Court of Appeal found that it was not foreseeable that one co-worker (who had apparently selected his victim at random) would attempt to kill another.
Another key issue will be causation – what could the employer have done differently, and would it have avoided the assault? In Colwell, the nature of the workplace was that it would have been possible to move the two employees, which the Court found would have prevented the assault.
However, in a 2012 case from Queensland, the assault on the employee was “irrational and violent”, and the Court found that even if the attacker had been disciplined or counselled, or even dismissed, the attack may well have occurred in any event. Accordingly, the employee’s claim failed.
Although each of the cases discussed above arose from personal injury claims, it is also important to remember that those who engage or control workers also have obligations under work health and safety legislation.
Over the years, there have been a number of work health and safety prosecutions arising out of workplace assaults in the form of “pranks”, and it is no defence to a criminal prosecution under WHS legislation to say that the assailants thought it was funny at the time.
Employers are increasingly recognising the need to control psychosocial risks in the workplace, but Colwell serves as a useful reminder that physical risks also need to be considered. Fewer and fewer workers are now physically punching a clock to start and end their daily shifts; employers need to ensure that getting physical with co-workers, likewise, is ended before it gets a chance to start.
Angus Macinnis has a broad commercial practice with a focus on dispute resolution, and in particular, on employment and work health and safety law, and intellectual property law. He advises employers and employees on all aspects of employment law, from drafting contracts and employment policies, to dealing with employment related disputes, to dealing with employment and safety regulators.
He has a particular interest in the employment law aspects of social media use and has published in this area in publications including the Law Society Journal, The New Lawyer, and the Internet Law Bulletin, as well as providing regular contributions to AHRI’s HRM Online website. He is a regular speaker at conferences for MCLE providers including the Law Society of New South Wales and the University of New South Wales and also provides training to employer clients in areas including anti-discrimination law.
In the intellectual property area, Angus advises in relation to copyright and trade mark disputes, as well as “trade dress” and passing off disputes. Contact Angus at firstname.lastname@example.org