Safety is not a “sometimes thing”: Employer fined for failing to effectively enforce safe systems

The NSW District Court has convicted and fined a KFC franchisee after a young worker sustained third degree burns when his foot slipped into hot oil while he was cleaning the hoods of an overhead ventilation system.  

The worker, who was 20 years old at the time of the incident, was employed as a Food Service Team Member at a KFC restaurant in North Coffs Harbour, NSW. He was tasked by his supervisor (who was just 19 years old) with cleaning cooking equipment in the kitchen, including the hood and filters of a ventilation system located above the oil cookers.

In the course of cleaning the kitchen, the worker first cleaned out the oil cookers and then turned them on to prepare them for cooking. He left the lids of the oil cookers open because he had been instructed by the restaurant’s assistant manager (also just 20 years old) that closing the lids could spoil the oil.

The worker then retrieved a ladder to access the hoods/filters above the cookers for cleaning. In the process of cleaning, the worker had either one or both feet on the top of the cooker. Then a black out occurred.  

As the worker attempted to step down from his cleaning position, his left foot slipped into a cooker pot containing hot oil. He quickly lifted his leg out and tore off his pants, socks and boot and in doing so, burnt his hands as well. The worker sustained third degree burns to his left leg and his hands.

SafeWork NSW prosecuted the employer for failing to comply with its health and safety duty under s19(1) of the Work Health and Safety Act 2011 (NSW) because it exposed the worker to a risk of death or serious injury.

The employer pleaded guilty at the first available opportunity and so the task for the Court was to decide on the appropriate penalty.

In reaching its conclusion, the Court considered the objective seriousness of the matter including whether the employer was aware of the risk to workers and what steps had been taken to mitigate that risk.

The Court noted that the restaurant had a work health and safety management system in place at the time of the incident and the franchisor required that franchisees (such as the employer) comply with its safety systems as a minimum.

At the time of the incident, the employer had taken a number of steps to promote safe work in relation to the cookers, including:

  • Permanent safety signs were fixed to the wall directly behind the cookers. The signs alerted readers to the dangers of the cookers and instructed users to read the use and care manuals before using, cleaning or working on the cookers.
  • A manual for the ventilation system, which included guidance in relation to cleaning the hoods and filters. Relevantly, it stated:

        a) Do not stand on cooking or kitchen equipment while cleaning;

        b) Always close cooker lids;

        c) Where possible, move any items from under the hood you are about to clean;

        d) Always wear protective gloves; and

        e) Do not clean filters above fryers whilst fryers are turned on.

The worker did not recall having seen the manual before the incident.

  • Workers (including the worker who sustained the injury) were required to complete web-based training which advised workers to “follow the procedures and take care around the cookers…” and “When cleaning or servicing the canopies/hoods and filters, disconnect the cooker, close the cook pot lid, pull the cooker away from the wall, and use a ladder to reach the canopies – do not stand on top of the cooker.”
  • The employer also conducted safety meetings and the worker’s attendance at those meeting was recorded.

The Court found that, despite all of the above, the worker’s usual practice had been to clean the hoods of the ventilation system, standing on the cookers while the cooker pots were filled with oil and the cookers were turned on.

The Court found that the employer was aware of its work health and safety obligations and made significant efforts to comply with those obligations, however, those efforts were not enough.

In summary, the Court concluded that the worker had not been told by his managers or supervisors not to clean the hoods or filters in the manner he was accustomed to and had not been directed to close the cooker pot lids or disconnect the cookers from their power source before commencing his cleaning duties. In fact, he had been told by the assistant manager to leave the lids open so as not to spoil the oil.

The Court accepted that there was a general lack of understanding about the proper way that the ventilation system should be cleaned and there should have been a greater level of supervision in the workplace.

The Court held that the employer did not adequately implement its safe work procedures and did not provide adequate training and instruction to workers. 

In reaching a position on the appropriate penalty, the Court accepted that the safety of young workers in the employer’s industry must be taken into account and the obligations imposed on employers under work health and safety legislation must be taken seriously.

The Court also considered the steps taken by the employer after the incident:

  • On the day of the incident, the CEO of the employer visited the restaurant and offered support and counselling to workers;
  • Immediately after the incident the employer sent a message to approximately 42 of its restaurants advising them of the incident and the immediate precautions that were to be taken to eliminate/minimise the risk of similar occurrences;
  • Further training and induction were conducted about the proper way to clean the ventilation system, including the creation of a step-by-step document. Workers were informed about and trained in the document;
  • Changes in procedure were communicated to WHS and managerial staff who distributed the information to the area and store managers;
  • The employer changed the day on which the cleaning of the ventilation system was to take place from Thursday to Tuesday when there would be two managers on site to provide proper supervision;
  • The employer changed the shift start time for workers tasked with cleaning the ventilation system so that they started earlier. This would allow the cleaning to take place with enough time for the oil to be heated before cooking started for the day;
  • Adherence to the new systems of working was monitored by CCTV;
  • The employer worked with the franchisor to develop a tool that would allow the hoods to be cleaned from the ground;
  • The employer conducted WHS refresher training for both its management and its other workers;
  • The employer provided an additional set of ventilation filters to each of its restaurants so that one set could be soaked/cleaned whilst the other set was being used in the ventilation system, thus reducing the time pressure to clean quickly; and
  • The employer engaged an external WHS consultant and hired and experienced WHS manager.

The Court held that the employer was a good corporate citizen and this was the first incident of its kind in the employer’s history. It ordered the employer to pay a penalty of $80,000 (the maximum penalty available is $1,500,000) to be reduced by 25% for the employer’s early guilty plea.

Lessons for employers

The courts have also repeatedly made the point that administrative control measures such as safe work procedures, manual or other written materials are not worth the paper (or megabytes) they’re written on if there is no follow-through from the employer in terms of training, supervision and enforcement.

This case serves as a good reminder to employers that regular auditing, monitoring and correcting the ways that workers perform tasks over time is an important component of an effective safe system of work. Employers have a responsibility to ensure that workers are not taking, or encouraged to take, shortcuts in the performance of their job tasks.

This case also highlights that, regardless of how robust a written safe system of work is, if workers are not properly trained and supervised in the performance of tasks, the results can be disastrous both for workers and for employers.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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