This case serves as an important reminder that employers should appropriately address identified risks to ensure they are not breaching their duty of care to employees. However, a worker’s claim does not necessarily succeed just because they can demonstrate a breach of duty or care by an employer.
Background
Compass Group Remote Hospitality Services operated the Eureka mining camp in Moranbah, which accommodated up to 1,000 people. Ms Bishop worked as a kitchen hand for Compass Group.
Ms Bishop alleged that, over a six-month period in 2019, she performed a range of repetitive duties involving high forces and high static loads that caused her to suffer right-sided tennis elbow. She further alleged that she was subsequently placed on modified duties by Compass Group that caused her to suffer left‑sided tennis elbow.
Ms Bishop worked on a roster consisting of 14 consecutive days on, followed by 7 days off. Each shift was approximately 10.5 hours with a 30-minute break and two 10 minute ‘smoko’ breaks.
Kitchen hands like Ms Bishop were rotated through four areas every 30 to 60 minutes. The rooms and duties involved included:
- the dining room, with workers preparing the room for service, replenishing the cold bain-maries and service stations as required, wiping down tables and cleaning after service had completed
- the crib room, with workers conducting similar tasks to the dining room but on a smaller scale
- the dishwasher area, which utilised an automated conveyer belt system, where workers would scrape off the food and pre-rinse plates before loading and unloading the machine
- the pot wash area, which required workers to: –
- pre-rinse trays, pots and dishes with a hose and place them in an automated power soaker machine
- manually scrub any dishes that did not come in clean.
On 19 October 2019, Ms Bishop reported to a security officer that she had some discomfort in her right elbow after her shoulder had lightly contacted a self-closing swing door. Ms Bishop was then reviewed by a HSEQ advisor, paramedic and physiotherapist. She reported to the paramedic that, one week earlier, she had noticed discomfort in her elbow when wiping tables and mopping. The physiotherapist diagnosed Ms Bishop with right elbow tendonitis but deemed her fit for full duties with reduced efficiency.
Ms Bishop remained on suitable duties from late October 2019 until mid-May 2021. During this time, her duties were regularly reviewed and rotated. Twelve months after her WorkCover claim ceased, Ms Bishop moved to an administrative role in the office and reception. She remained there at the date of trial.
Breach of duty
Judge Rosengren found that Compass Group had engaged in a systematic consideration of the risks and Ms Bishop had received extensive and ongoing training about safe work practices. As part of this training process, Ms Bishop indicated on several occasions that she understood the need to avoid repetitive tasks and accepted that she had been trained about the need to alternate repetitive with non-repetitive tasks and take regular breaks.
Her Honour further noted that Compass Group had taken significant steps to try to ensure that the systems of work adopted at its sites were safe. For example, Ms Bishop underwent a pre-employment functional assessment and ergonomic and manual handling training by an allied health professional, and Compass Group had engaged external physiotherapists to attend the camp each month to observe the workers performing their tasks and ask the workers about any issues they may have been experiencing.
Ms Bishop alleged Compass Group should have:
- provided additional assistance when working in the dining area
- rotated employees through tasks every 30 minutes
- ensured employees received their 10 minute ‘smoko’ breaks.
While Judge Rosengren found there was no evidence of insufficient staffing, her Honour noted Compass Group had breached its duty of care by failing to ensure kitchen attendants were rotated out of the pot wash area every 30 minutes and failing to enforce the taking of designated ‘smoko’ breaks. Her Honour highlighted the fact that Compass Group’s own risk assessment had identified the risk of repetitive strain injury where the task was performed for more than 30 minutes but Compass Group had not implemented any formal rotation system.
Ultimately, her Honour found that, while Compass Group had appropriately identified the risk of repetitive tasks, it had failed to appropriately address the risk in their Safe Work Services Procedures, training, or systems for rotation of duties. Additionally, Compass Group should have implemented in a system in which team leaders of each shift ensured that employees took their designated breaks. By failing to implement these systems, Compass Group had breached its duty of care to Ms Bishop.
Causation
Despite finding a breach of duty of care, Judge Rosengren found that Ms Bishop had not established any causal link between any act or omission by Compass Group and the development of her elbow conditions. Her Honour found that it was at least equally probable that her elbow condition could have been caused by her gender, age and constitution, rather than the work duties, and, therefore, Ms Bishop’s claim was subsequently dismissed.
Conclusion
This case serves as an important reminder that employers should ensure they implement and enforce a system of work that addresses risks identified in the workplace. Courts will readily hold there has been a breach of duty of care where an employer undertakes a risk assessment that identifies a particular risk, but then fails to implement precautions to minimise that risk.
Source: Lexology
