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What happens if an injured worker failed to wear PPE?

Q: Could you please advise obligations/responsibilities for employers/supervisors/employees where an employee is injured due to failure to wear appropriate PPE? Employees have been provided with the relevant PPE, trained in its proper use, there are signs up advising when and where PPE should be used and Safety Work Method Statements (SWMSs) advising you ‘MUST’ or it is ‘ESSENTIAL’ to wear PPE. All employees have reviewed the SWMSs and have agreed to the content.

A: The extent to which an employer (including supervisors) will be liable in such a circumstance will depend upon whether they were aware of the worker not wearing the PPE.

By way of example, in Barbosa v McDonald’s Australia Limited (2003), an employee suffered serious burns when emptying hot oil at a McDonald’s restaurant. While McDonald’s provided gloves, a face shield and an apron for carrying out the task, the employee was not wearing them when the accident occurred.

However, the supervisor in charge at the time was aware that the employee was not wearing the protective clothing. McDonald’s was therefore found to be in breach of health and safety duties due to a number of failures, including failing to ensure a safe system of work and failing to ensure the use of PPE, and was fined $75,075.

Another relevant factor is whether the employer has directed the employee to wear the PPE, in addition to all the examples of instructions you provided. For instance, whether a manager directly approached and instructed the worker to wear the PPE, or provided written notice directing the worker to wear the PPE. This is because employees do not have the right to refuse a lawful and reasonable direction from their employer.

In this case, it would be lawful and reasonable to direct an employee to wear PPE when entering a hazardous area in the workplace.

We recommend that you review Chapter P2 – Personal Protective Equipment.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Personal protective equipment for current advice.

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