Supermarket giant Woolworths has been ordered to pay a former worker $231,000 in compensation after he successfully appealed a court decision related to a shoulder injury he says was sustained while working at the retailer’s Queensland distribution centre.
The worker, who started working for Woolworths in 2010, brought legal action against the supermarket for the first time in 2013, seeking damages for personal injuries.
He claimed Woolworths breached a duty of care to protect him from injury through its use of performance targets, which drove him to work faster for fear of being sent home from shifts. The employee had a pre-existing shoulder condition known as rotator cuff tendinopathy, and his legal team claimed the strain of the job aggravated that condition.
In 2016, the initial trial decision in the Queensland District Court found the worker had not done enough to prove the causal link between the injury and Woolworths’ processes.
However, the Queensland Court of Appeal court found evidence submitted in the initial case, which said the employee would have sustained the injuries to his shoulder anyway due to his underlying condition, was not sufficient, and that doctors found there had been an “acceleration” of the employee’s injury since commencing work.
The appeals decision found some of Woolworths’ practices required staff to frequently lift items at weights beyond guidelines from Worksafe Victoria. While the initial decision in 2016 did not find in favour of the employee, the judge did observe Woolworths’ safety training process was detailed, but only “in theory”, rather than practice.
The employee also claimed workers were given performance ratings based on how items they moved, and workers with less impressive scores were sent home from shifts first if there was not enough work. The trial judge found “it was likely [the worker] took short cuts such as leaning across a pallet rather than walking around it” because of this.
The judge also observed “the essentially time-based assessment system, being one of highly repetitive manual transfers, was likely to encourage the taking of shortcuts, in part because of its target of 100 percent transfers”.
As a result, the court ruled on Tuesday that Woolworths should be found liable for the worker’s injury claims. The court ordered the supermarket to pay $231,000 in damages, including $121,000 in compensation for past economic loss caused by the injury, and $105,000 for future economic loss. Woolworths was also ordered to pay the worker’s legal costs for the appeal.
The employee was represented by Shine Lawyers and general manager of the law firm, Peter Gibson, said the appeals decision has big implications for the duty of care that Australian employers owe to workers when they complete high intensity work.
“The system of work left our client vulnerable to injury and unfortunately he has paid the price,” Gibson said in a statement to SmartCompany.
“A negligent work system encouraged employees to work harder and faster — where some were sent home if their rating was less than the others.”
A spokesperson for Woolworths confirmed to SmartCompany it was reviewing the court’s decision.
“The safety of our team members is critically important and we remain committed to providing a safe workplace,” the spokesperson said.
Not good enough to “set and forget”
Alan McDonald, managing director of McDonald Murholme lawyers, says the case decision is a reminder for SMEs to make sure their businesses are regularly audited by external workplace safety advisers so any potential process issues are caught early.
“It’s a big job from a small employer to do on its own, but if you can engage from time to time experts who come in and audit for you, especially as your business grows, they can tell you about any [concerns],” he says.
The decision by the court of appeal in this case shows the courts are being more sympathetic to the physical ailments of workers, McDonald says. While the worker did not appear to raise concerns about his injury with Woolworths in the early stages, McDonald believes businesses need to think about how they respond to employees if they do raise concerns about pain or manual processes.
McDonald says complaints from staff about things like production floor processes do not need to be raised in writing to be considered legitimate, and if employers ignore even verbal concerns from workers, especially if these are consistent, a failure to act can open them up to fines and penalties for breaching the Fair Work Act.
While SMEs might not be operating anywhere near the production scale of a company like Woolworths, the message for businesses around health and safety when moving products is also clear from this case, says McDonald.
“It’s just not good enough to set and forget,” he says.