A small rush of decisions in cases involving employee pranks have come out in the last month or so. Just a coincidence rather than a trend, but they do highlight employee pranks as a workers' comp/WHS risk, and the potential liability of employers for penalties under the WHS legislation.
All of the cases involved particularly silly acts, so for that reason they are probably the sort of things that you feel warning against is unnecessary or "goes without saying".
However, you can't be too careful. These cases also illustrate the sort of things covered by skylarking or practical jokes and employees should be told that it is totally unacceptable conduct via workplace policies and safety training. This is especially so if your industry or workplace has a culture or tradition of "inducting" or "initiating" apprentices, where some of the worst cases occur.
"Egging"
In a recent NSW Industrial Relations Commission decision, four workers were found guilty of WHS offences for "egging" one of their colleagues because he was getting married the next day.
The victim was seized, his hands and feet were strapped to a panel of steel mesh, his clothes, except for his underwear, were cut off with a knife, and he was pelted with a dozen raw eggs. Then the genius in charge of this escapade (a supervisor aged 49!) poured a half-circle of petrol around the victim and lit it. The victim struggled, and as a result he and the steel mesh fell into the flames. He was rescued and offered a spare set of clothes, but not first aid, by his colleagues. He suffered burns requiring skin grafts and, not surprisingly, psychological injuries. His wedding and honeymoon were ruined and he lost his job because of incapacity to work.
The supervisor was sacked, prosecuted in the ordinary criminal court ($2,000 penalty), had to pay $16,000 to the workers compensation insurer, and another $2,000 for the WHS offence, plus Workcover's costs. Another participant was fined $1,800 plus costs. Two employees who were "fringe players" escaped conviction, but with the admonition that it is not enough to disapprove passively – an employee seeing something dangerous being done has a duty to intervene.
The company jokester
A known prankster approached a co-worker and clapped his hands abruptly over the co-worker's ears, triggering hearing loss and the onset of tinnitus. The employer was held liable for workers compensation because the incident arose out of his employment, even though the act of the prankster was well outside the course of employment.
Picking on the apprentice
A labour hire employee glued some screws together to play a prank on an apprentice and other workers. When the apprentice discovered the trick and turned to the prankster, the prankster aimed a nail gun at him (allegedly in the belief that it was disconnected), and fired. It wasn't disconnected and the apprentice was hit in the arm - of course it was pure luck that the injury was not worse. The prankster was prosecuted and fined $3,000. (Last year, an employee firing a nail gun at another employee was gaoled.)
"I was bored"
After an 18-hour wait at a wharf to refuel a ship, one worker livened things up by firmly pushing a co-worker's knees from behind causing the co-worker to stumble and hurt his back severely.
This time, the act was found to be so far out of the course of employment that the employer was not liable for damages (but there were no doubt workers comp costs).
If your staff need training in relation to acceptable and unacceptable conduct (whether it be skylarking, bullying, harassment or discrimination), please contact our Employment Law Team on ph 02 9635 6422 for assistance.
Whilst you may not think you need to spell these things out, time spent ensuring your employees know their obligations and responsibilities could prevent an injury and save you considerable cost down the track.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
