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:
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.
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:
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 | firstname.lastname@example.org
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