Horseplay in the workplace leads to $662,102 in damages. Is your business at risk of an incident or potential claim?
A certain amount of joking, skylarking and horseplay in the workplace is often harmless and lightens the atmosphere, keeping up the spirits of workers. However, when it goes too far and someone is injured, the consequences can be very serious and costly.
Is your business at risk of a claim with a potential compensation payout due to workplace horseplay?
Such was the case of Jony Ajia. In 2020 the District Court heard that Mr Ajia was employed by a labour hire firm in 2016 to work on a Sydney building site, doing labouring work which he had done for several years.
The court heard that after lunch Mr Ajia was walking across the site when his supervisor came up behind him and playfully put him in a “sort of” a “bear hug”. As they tangled, they fell to the ground and the supervisor landed on Mr Ajia’s leg, causing immediate and extreme pain.
Horseplay in the workplace can lead to serious injury.
What happened next?
Mr Ajia had to undergo three separate surgeries on his right ankle and could not continue doing the physical work he had been doing as a builder’s labourer. He retrained to work as an alarm monitor in the security industry, working in a seated position, but earning less than he did before the incident.
In July 2020, Judge Andrew Scotting found the company had breached its duty of care to Mr Ajia and awarded him $662,012 in damages, including more than $200,000 in future economic loss and loss of superannuation. (See Ajia v TJ & RF Fordham Pty Ltd trading as TRN Group [2020] NSWDC 371.)
The Company disputed the seriousness of the injury and employed a private investigator.
The supervisor’s defence was that Mr Ajia was a big fellow and they had developed “a bit of fun” at work, playfully wrestling and knocking about in previous encounters.
The supervisor’s employer defended the damages claim, sending an investigator to follow and record Mr Ajia lifting weights at a gym. The company claimed he exaggerated his lasting injuries.
Judge Scotting dismissed the investigator’s report and ruled Mr Ajia was telling the truth about his continued pain.
Skylarking known to take place at worksite.
What does the law say?
“The risk of harm was not insignificant because the risk of physical injury that arose from skylarking was obvious, the practice of skylarking was known to take place at the site and it was capable of causing a serious injury – e.g. if a worker fell and struck their head on the ground,” Judge Scotting said in his judgement.
“A reasonable employer in the position of the defendant would have provided supervision of the workers on the site to prevent the occurrence of episodes of skylarking,” the judge said.
Employer’s duty to provide competent supervisors and safe workplace
Sections 5B, 5C and 5D of the Civil Liability Act 2002 state will be taken into account when considering negligence and breaches of duty of care.
The employer has a duty of care to provide competent supervisors and a safe workplace. In this case the judge ruled the employer should have known there was skylarking on its building site, and that such behaviour was far too dangerous, and should have acted to stop it. As a result of all this, the Court ordered damages of $662,102 to Mr Ajia.
Akyra’s key takeaways
1. Danger of injury and death from horseplay in the workplace
The case highlights the need for employers to be aware that their duty of care includes the removal of a source of danger to an employee posed by another employee, even if no harm is intended.
There are far too many injuries and deaths on building sites to allow horseplay in the workplace, especially if it is carried out by a supervisor who is responsible for safety on the site. It is the Employer’s duty to provide competent supervisors and safe workplace at all times.
2. Workplace fatalities in Australia increase significantly from 2018 to 2019
Safe Work Australia reports 183 people died in workplace accidents in 2019 in Australia with approximately a third of those in NSW. This represents an increase of 21% from the previous year’s national figure of 144 deaths and an increase of 31% from the previous year’s figure of 47 deaths in NSW.
Australian work sites became significantly more dangerous from 2018 to 2019. (See Work-related injury fatalities – Key WHS statistics Australia 2020, Safe Work Australia and Work-related injury fatalities – Key WHS statistics Australia 2019, Safe Work Australia.)
Construction, transport, warehousing, agriculture, forestry, fishing and the postal industry are responsible for the highest number of workplace fatalities.
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to upskilling and professional development in the workplace. Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
Sources:
This article is part of a regular employment law news series for Mondaq.com. It was first published online on Mondaq.com Online, 21 April 2021.
