Employer ordered to pay $600,000 to former employee after failing to separate worker with violent criminal history prior to physical assault
Monday, July 30, 2018/
The Queensland District Court (QDC) has found a specialist butchery business was negligent in failing to separate two co-workers before a physical assault occurred in its workplace, ordering it to pay almost $600,000 in damages to the injured worker.
These proceedings concerned a physical assault committed by an employee of the employer (Mr P), against another employee (the worker), on January 20, 2014 while in the workplace. There was no dispute that Mr P had physically assaulted the worker, however, the worker claimed the employer had failed to take all reasonable steps to prevent the assault and was, as a result, liable for the injuries he sustained.
The co-workers were employed as knife hands/butchers in its food processing plant. On January 20, 2014, they were involved in a heated verbal exchange. As a result, their supervisor directed them to attend the office (an adjacent store room). On the way to the office, Mr P attacked the worker, initially from behind, punching him numerous times in the back of the head and the face until he was physically restrained by two other co-workers.
The worker sustained physical injuries and was on workers’ compensation for a period before ultimately returning to work. His employment was dismissed in May 2014 for reasons unrelated to the physical assault.
The worker developed post-traumatic stress disorder, which he claimed arose as a result of the employer’s failure to take reasonable steps to prevent the physical assault, despite being aware that Mr P had a history of violence.
In this regard, Mr P had previously been convicted of doing grievous bodily harm with intent to do grievous bodily harm, as well as occasioning actual bodily harm while in the United Kingdom and had served four and a half years’ imprisonment as a result. Mr P had also previously been employed by the employer both prior to and after his return from the United Kingdom. During one of those periods of prior employment, Mr P had been involved in a verbal altercation with another employee.
The worker claimed that, during his employment, Mr P presented himself as an intimidating figure in the workplace and had a propensity for talking about his criminal history and violent tendencies to co-workers.
In December 2013, the worker raised concerns with their supervisor about Mr P’s emotional state in the workplace and stated that he was concerned for his own safety. In the proceedings, the worker stated that he had described him like a “ticking time bomb”.
The worker also relied on Mr P’s evidence in the proceedings that, a few days prior to the physical assault, Mr P had approached their supervisor and requested that they be separated because they were not getting along and Mr P was “close to losing it”.
The worker claimed that the employer was aware of the heated verbal exchanges that had occurred between the co-workers in the lead up to the physical assault but had nonetheless failed to separate them, which resulted in the worker’s injuries.
The employer argued that the physical assault was not a foreseeable risk because it was not aware of the details of Mr P’s criminal history and Mr P had not been involved in any violent incidents whilst employed. It argued that the incidents in the lead up to the physical assault were not sufficient to put it on notice that there was animosity between the co-workers or that they required separation in the workplace.
The QDC was not persuaded by the employer’s arguments and found that, in addition to being put on notice that Mr P could be violent towards the worker, the employer had general knowledge of Mr P’s previous behavioural problems.
The QDC noted that the employer had found those problems to be so significant that, upon being re-interviewed for a position, it had asked Mr P if he had “changed”, which the QDC found was “suggestive of a perception that there had been a necessity for change”. It was therefore foreseeable that a physical assault would occur.
The QDC found that, despite this knowledge, the employer failed to separate the co-workers in the workplace and had further failed to separate them when they were arguing on January 20, 2014. It regarded this step as “relatively simple and inexpensive” and would have likely prevented the physical assault from occurring.
As a result, the employer was order to pay $584,995.09 by way of damages to the worker, comprising of general and special damages as well as past and future economic loss.
What can your business learn from this decision?
Employers should ensure that their managers and supervisors are well-equipped at listening and responding to the concerns of their workers in a timely manner, particularly those relating to the health and safety of those workers. A failure to do so may result in findings that an employer was negligent in its duty of care.
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