Don’t come Monday (or Tuesday)!

By Jeff Salton on August 31st, 2017

Across the country, many football teams that have missed out on playing finals in their respective codes have participated in (or soon will be) what is traditionally known as ‘mad Monday’. The term is used to describe a group of players (often in costume) who gather early on Monday at a local pub and, often having sworn off alcohol for an entire season, make up for lost time!

Recently, one AFL footballer who was renowned for his memorable mad Monday performances had this advice for fellow footballers who take off the Monday from work to drink with their teammates – take off Tuesday from work as well so that you can recover your sobriety… and dignity.

But what can employers do if workers arrive for their shifts unfit for duties? Many companies now have policies to deal with workers who present for work either affected by drugs or alcohol. But what about workers who are fatigued? Some studies show that being affected by fatigue can be as dangerous as being affected by alcohol.

Recently, a company facing this problem contacted our Health & Safety Helpdesk – something subscribers to the Health & Safety Handbook can do as often as they like – and asked the lawyers via email what they could do about their situation.

The company employed a predominantly casual labour workforce to conduct high-risk industrial work. But the business-owners were becoming increasing concerned about employees working on weekends for other companies and arriving at work for their company on Monday morning obviously fatigued.

The owners acknowledged that they couldn’t force the casual workers not to work when they wanted (or needed) to, but asked how they could enforce their policies and procedures which attempted to provide a safe and healthy work environment when the workers could potentially be unfit for work at the start of a shift?

The risks of worker fatigue

The Helpdesk provided the following response: “As you have identified, worker fatigue is a risk to the health and safety of your workers, both to the fatigued worker and other persons in your workplace.”

It pointed to several overlapping duties…

A person conducting a business or undertaking (PCBU) has a general duty to eliminate or minimise risks to the health and safety of workers and other persons in the workplace (section 19, harmonised Work Health and Safety Act).

A worker, while at work, must also:

  1. take reasonable care for his or her own health and safety, and
  2. take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
  3. comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the PCBU to allow the person to comply with this Act, and
  4. co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers (section 28, harmonised Work Health and Safety Act).

There is an obvious risk that a PCBU and a worker will be in breach of their health and safety duties if the worker performs work when they are not fit to do so.

The Helpdesk suggested ways to manage worker fatigue:

  • discuss fatigue with the worker;
  • if the worker is performing high-risk work and does not appear fit for work, allocate the worker to non-high-risk work;
  • send the worker home on paid leave (and ensure that there is a safe transport option);
  • provide the worker with a formal warning and inform the worker that their employment is at risk of disciplinary action, including termination, if they continue to present at work while not fit to perform their duties;
  • direct the worker to attend a health assessment if the fatigue appears chronic;
  • ensure you have policies in place concerning worker fatigue and high-risk work;
  • include a clause in your workers’ employment contracts that states that you reserve the right to send a worker home from work if you believe that the worker is not fit to perform their duties.

The Helpdesk also added the warning that the company should seek legal advice prior to taking any adverse action. There are some possible risks including a general protections claim or a discrimination claim, particularly if the worker claims that an action is taken on the basis of an illness or injury.

Need more help?

Further information on managing fatigue in the workplace can be found in the Health & Safety Handbook, in particular chapter F3 Fatigue Management. This chapter addresses:

  • risks of fatigue;
  • when fatigue is a high risk;
  • obligations on a PCBU to reduce the risks of fatigue;
  • signs of fatigue;
  • excessive working hours;
  • significant demands outside of work;
  • shift work; and
  • how to determine whether workers are fit for work.

Order your copy of the Health & Safety Handbook today and test it out on an obligation-free trial. Read the chapter on fatigue and any of the other 70-plus chapters and see how the information provided by the health and safety experts can help to simplify your business.

 





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