Hospitality Business Law

35

Question 1

A safety inspector was carrying out an inspection at a local hotel. In the kitchen he noted a garbage disposal machine, which was not guarded. This meant an operator could insert their arm into the machine. The inspector instructs the business owner, Fred, to take the machine “out of service” until it is guarded. Fred immediately tells Jeff, a pantry hand, to put an “out of service tag” on the machine and notifies the maintenance manager to isolate the electricity (so the blade will not work) until a guard is
installed. The maintenance department electrically isolate the machine but do not get round to putting a guard on. They don’t see it as a priority as “no one has ever been hurt by the machine before”. In the meantime the “out of service tag” gets really dirty and is removed for cleaning. An electrician doing some general testing notes the disconnection and reconnects the machine.
Two weeks later Pete finds the machine blocked, he had been away on holidays and was not aware it was out of service. He sticks a spoon into it, when the spoon breaks he tries to grab onto it, but instead his hand is severely cut by the machine.
1. Refer to the employer’s duty of care and with specific reference to factors to be considered discuss whether a breach of the employer’s duty of care has occurred? 
2. Has anybody else breached their duty of care?

Answer:

SITUATION

From the instant facts of the case, there are six issues which need to be addressed. 1stly, the safety inspector finds that the garbage disposal machine was not guarded, 2ndly, the business owner F, informs J from pantry to label it with an out of service tag. 3rdly, the electric supply was put to off, by the maintenance department, but the guard was not incorporated. 4thly, the out of service though removed for cleaning, was not replaced with another one. 5thly, the electric connection was reconnected by the electrician and finally, Pete got injured due to the faulty machine. 

THEORY

Australia is governed by the Work Health and Safety Legislation and is aimed at reducing the traumas and the injuries resulting into fatalities while at the workplace. According to (Jones Eric, 2016), the legislation (Work Health and Safety Act- New South Wales Government, 2011) is in force to provide protection for the safety of the workers or the employees in the workplace, and the legislation further provides a mandate that the employers or the business owners must take necessary steps in order to ensure the safety of the people not only whom they are employing, but also for the members of the general public, who can also be affected due to the business in operation in their locality. Again, the business can encounter penalties and also includes detention for specific period of time along with criminal prosecution for the violation of (Work Health and Safety Act- New South Wales Government, 2011). So, if the business fails to meet the safety standards it might encounter economic challenges and could also encounter heavy fines as happened for Coffs Harbour manufacturing business, who was fined heftily, when  17-year-old student was injured while doing the work experience (NSW: $250,000 FINE FOR WORK EXPERIENCE INJURY- Safety Institute of Australia , 2017). So, it is crucial that the business owners and the employers employ the best safety practices so that it can not only save the lives of the people working within it, but also can save the organisation heavy fines from getting charged due litigation and also in paying the compensation. (Richar

d, 2011)

APPLICATION

Based on the present facts of the case there are certain precedents which in a way becomes a binding one. In case of (Latimer v AEC, 1953), the claimant was working as an employee for the defendant’s factory and slipped on the factory floor, due to the factory getting flooded due to the advanced weather conditions. There was warning signs affixed by the defendant and sawdust was also placed in the areas which are in most use. The trial judge held that the breach of duty to take was on the defendant since he had the chance to shut down the factory due to extreme weather conditions, which made the factory an unsafe place to work in. But, House of Lords held that there was no breach of duty on the part of the defendant and the further stated that the defendant was not having any duty to close the factory, since he took reasonable precautions for minimization of risks and also took measures to eliminate the potential risk which might arise, and hence had no further obligation in closing the factory. So, the court was in the view that there was no breach of duty to take care for the employer. 
Again, in case of (Drake Personnel Ltd t/as Drake Industrial V. WorkCover Authority of New South Wales, 1999), the employer, Drake Personnel Ltd, did provide the claimant with the training and send the field staff to the premises of the client for inspection of the guarding machine. But, there the claimant was asked to work on such machine which was not guarded and due to that the claimant suffered injury. The Industrial Relations Commission held that it is the duty of the employer i.e. Drake Personnel Ltd to provide caution and guard the employee against the risk of working in an unguarded machine. So, it was held that the omission to inform the claimant or any other employee is a breach of duty to take care. 
In case of (Samuleu Fetu v Northern Iron and Brass Foundry Pty Ltd, 2013), the plaintiff was a spray painter and suffered injury in shoulder while working by remote control. Due to faulty remote control, his shoulder got wrenched while working on hoist. The claimant previously informed the issues regarding this mal functioning. The court accepted evidence in favour of the worker and further identified that the issue was not covered in the risk assessment so done by the employer and neither there was any cautioned warning being given to the employees. The plaintiff was awarded damages. 
In (Tompkins v Kemp Meats Pty Ltd, 2013), plaintiff was abattoir slaughterman, under the employment of the defendant. While fronting out a pig, he cut potions of his thumb, but continued working and subsequently, his thumb got infected, which was treated in due course, but he suffered severed extensor tendon and had to underwent surgery and again suffered infection but continued to work and complained stiffness and lack of grip, and finally resigned from the employment of the defendant. The defendant contended contributory negligence, but the Court held in favour of the plaintiff and awarded him damages and held defendant in breach of duty to take care. 
In case of (O'Connor v Commissioner for Government Transport, 1954), the plaintiff was a plumber working for the employer, and while ate work, the awning gave way underweight and the plumber was fatally injured, the court held employer in breach of reasonable duty to take care.

RESULT

Based on the precedents cited above, in most of the cases the Court held the opposite party, i.e. the defendant in breach of duty to take care of the employees. Coming back to the facts of the present case, the employer is in breach of keeping the garbage disposal machine unguarded which caused injury to Pete and thus under the (Work Health and Safety Act- New South Wales Government, 2011), the employer is liable, since everyone under the legislation is under a mandate to share responsibility to protect others. Furthermore, the pantry hand, the maintenance manager and the electrician are also in breach of their duty to take reasonable care. So Pete, the aggrieved party can sue her employer for the negligent actions on part of him as an employer under the (Work Health and Safety Act- New South Wales Government, 2011).

Question 2

Wendy sees a job advertisement for a “casual bar attendant” in the local newspaper. She gets the job. Not long afterwards her supervisor, Bob, finds out that she has a hearing
impairment. On occasions this has meant that she has misheard a customer order (especially when the music volume is high). Bob calls her into the office and gets very angry, he believes that having to ask customers to repeat themselves is bad customer service. He taps her on the top of her head and says “you better get it into your thick head I don’t like mistakes around here”. After each shift from then on Bob embarrasses Wendy in front of co-workers and blames any inconsistencies when he counts
the till at the end of the night on her. Wendy has been to her doctor, she is anxious and depressed. Her doctor recommends she find a new job.
1. Do you consider discrimination has taken place? (8 marks )
2. What else can she do? (7marks)

Answer:

SITUATION

Based on the facts of the case, there are three issues. Firstly, that Wendy is having hearing impairment and have at times misheard customer order. 2ndly, Wendy’s supervisor, i.e. Bob misbehaved with her and verbally abused her and embarrassed her in front of other co- workers and blamed her any inconsistencies which happened at counting the till at the end of the day. 3rdly, Wendy is suffering from depression and anxiety and is having treatment. 

THEORY

So, basically, Wendy is suffering discrimination bullying and harassment in the workplace. Discrimination can be both direct and indirect. It is direct when the one is unequally treated and discriminated based on the personal characteristics. (Prof Graham Thornicroft, 2016) points out that direct discrimination is an unlawful practice under federal discrimination laws, when they are targeted on the protected characteristics, including race, or sex, can be pregnancy, or sometimes marital status, or intersex status. Again, (Indirect Discrimination- Australian Human Rights Commission, n.d.) is the presence of the unreasonable rule or policy which is applicable to all but, is quite unfair to a single individual or a certain group of people. Bullying is, on the other hand an unwanted, and also quite an aggressive behavior which involves power imbalance and is often done by a person having influence to intimidate the other party and is aimed at making the victim to do something (Anne O’Rourke, 2016). Again, is defined as an aggressive behavior to annoy or to intimidate someone due to the fact that they are the protected characteristics, including race, or sex, can be pregnancy, or sometimes marital status, or intersex status (Conditions, 2011)
Australia has the governing legislation which protects the country from discriminatory practices, bullying and also harassments. The governing legislations are (Age Discrimination Act- Federal Register of Legislation, 2004), (Discrimination Act- Federal Register of Legislation, 1991), (Fair Work Act- Federal Register of Legislation, 2009), (Australian Human Rights Commission Act- Federal Register of Legislation, 1986), (Racial Discrimination Act- Federal Register of Legislation, 1975), (Sex Discrimination Act- Federal Register of Legislation, 1984), (Work Health and Safety Act- New South Wales Government, 2011), (The Disability Discrimination Act- Federal Register of Legislation, 1992), (WORKERS COMPENSATION ACT- New South Wales Consolidated Acts, 1987), ( ANTI-DISCRIMINATION ACT- New South Wales Consolidated Acts, 1977). Again, if it is found that one is in breach to the above stated legislations, then it might lead to criminal prosecution. 

APPLICATION

The facts of the case can be identified against three precedents. In case of (Gilbert v Midland Bank plc, 1998), the employee claimed sex discrimination against her employer along with the breach of her contract of employment in constructive dismissal. Anthony Gilbert, was bullied and harassed and discriminated by female employer, Katherine Dowse who was working as a senior secretary. Mr. Gilbert contended that he was degraded and humiliated and was required and was forced upon him to mop the floor. The court held that the Midland Bank was into sexual discrimination practices. 
In case of (Harling v CL Plastics Ltd, 2000), the Court allowed the disability discrimination claim by the employee who have had dyslexia and was inhumanely treated and was barbaric towards the employee. Th employee complained about his tortures to higher authority but did nothing about his complaints against the co-workers and junior managers, who were into the discriminatory practice. 
In case of (British Sugar and Hedley v. Aldi Supermarkets- Supermarket pays sacked HIV employee £300,000, 2000), Mark Hedley was employed as a store manager at Aldi supermarket.  Hedley’s partner died of HIV-related illness. Hedley was diagnosed, and he took 3 months of leave from work and then joined the work. But, company without telling actual reason tried to put him off from work. Aldi contended that keeping Hedley away from work was justified. Hedley filed both disability and sex discrimination and was finally awarded £300,000 as compensation. 

RESULT

So, based on the above-mentioned precedents, it is an offence and also a contempt when the legislations mandate the non-discrimination tactics. So, discrimination, bullying and harassment in the workplace must be at any cost be kept at bay and avoided. So, in the present facts of the case, Wendy is discriminated, bullied, and was harassed in the workplace by Bob, so she is subjected to those humiliations of tapping her head and verbal abuses followed by wrongful accusations regarding the variations found in tills. So, Wendy can bring action as against Bob under (Discrimination Act- Federal Register of Legislation, 1991) and also under (The Disability Discrimination Act- Federal Register of Legislation, 1992) and further more can claim compensation from him through (WORKERS COMPENSATION ACT- New South Wales Consolidated Acts, 1987), and based on the (Fair Work Act- Federal Register of Legislation, 2009). So, she can also seek remedy through (Australian Human Rights Commission Act- Federal Register of Legislation, 1986). But, she even if not replaced by the company, can always provide her with disability uniform which will help her to perform better and if then also she cannot perform well, then she might get replaced.

References

• ANTI-DISCRIMINATION ACT- New South Wales Consolidated Acts, 1977. ANTI-DISCRIMINATION ACT. [Online] 

• Available at: http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/aa1977204/

• Age Discrimination Act- Federal Register of Legislation, 2004. Age Discrimination Act, s.l.: s.n.

• Anne O’Rourke, S. K. A., 2016. Workplace bullying laws in Australia - Placebo or panacea?. Common Law World Review , 45(1), pp. 3-26.

• Australian Human Rights Commission Act- Federal Register of Legislation, 1986. Australian Human Rights Commission Act 1986, s.l.: s.n.

• British Sugar and Hedley v. Aldi Supermarkets- Supermarket pays sacked HIV employee £300,000, 2000. British Sugar and Hedley v. Aldi Supermarkets. [Online] 

• Available at: https://www.theguardian.com/uk/2000/apr/11/kevinmaguire

• Conditions, E. F. f. t. I. o. L. a. W., 2011. Rise in Reported Cases of Bullying and Violence at Work. [Online] 

• Available at: https://www.eurofound.europa.eu/sites/default/files/ef_files/ewco/surveyreports/DK1108019D/DK1108019D.pdf

• Discrimination Act- Federal Register of Legislation, 1991. Discrimination Act 1991, s.l.: s.n.

• Drake Personnel Ltd t/as Drake Industrial V. WorkCover Authority of New South Wales (1999). 

• Fair Work Act- Federal Register of Legislation, 2009. Fair Work Act- Federal Register of Legislation. [Online] 

• Available at: https://www.legislation.gov.au/Details/C2017C00323

• Gilbert v Midland Bank plc (1998). 

• Harling v CL Plastics Ltd (2000). 

• Indirect Discrimination- Australian Human Rights Commission, n.d. Indirect Discrimination. [Online] 

• Available at: https://www.humanrights.gov.au/quick-guide/12049

• Jones Eric, M. K., 2016. Radiation Safety among Workers in Health Services. Health Physics, 110(5), pp. 52-58.

• Latimer v AEC (1953). 

• NSW: $250,000 FINE FOR WORK EXPERIENCE INJURY- Safety Institute of Australia , 2017. NSW: $250,000 FINE FOR WORK EXPERIENCE INJURY. [Online] 

• Available at: https://www.sia.org.au/news-and-publications/news/nsw-250000-fine-work-experience-injury

• O'Connor v Commissioner for Government Transport (1954). 

• Prof Graham Thornicroft, N. M. S. C. e., 2016. Evidence for effective interventions to reduce mental-health-related stigma and discrimination. The Lancet, 387(10023), pp. 1123-1132.

• Racial Discrimination Act- Federal Register of Legislation, 1975. Racial Discrimination Act, s.l.: s.n.

• Richard, J., 2011. Dismantling worker categories: the primary duty of care, and worker consultation, participation and representation, in the model Work Health and Safety Bill 2009. Policy and Practice in Health and Safety.

• Samuleu Fetu v Northern Iron and Brass Foundry Pty Ltd (2013). 

• Sex Discrimination Act- Federal Register of Legislation, 1984. Sex Discrimination Act, s.l.: s.n.

• The Disability Discrimination Act- Federal Register of Legislation, 1992. The Disability Discrimination Act, s.l.: s.n.

• Tompkins v Kemp Meats Pty Ltd (2013). 

• Work Health and Safety Act- New South Wales Government, 2011. Work Health and Safety Act. [Online] 

• Available at: https://www.legislation.nsw.gov.au/#/view/act/2011/10/part14/div2

• WORKERS COMPENSATION ACT- New South Wales Consolidated Acts, 1987. WORKERS COMPENSATION ACT. [Online] 

• Available at: http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/wca1987255/