Your questions answered: Who is liable if a worker is injured due to failure to wear PPE?

By Andrew Hobbs on November 17th, 2017

 

Q
Our workers have been provided with the relevant personal protective equipment (PPE) and have been trained in its proper use. There are signs up advising when and where PPE must be worn. Our workers have also reviewed and agreed to our safe work method statements (SWMSs) advising that it is ‘essential’ to wear the PPE.

Could you please let me know who will be liable if a worker is injured due to failure to wear the required PPE? The employer (us), the worker’s supervisor, or the worker?

 

A
The extent to which an employer (including supervisors) will be liable in such a circumstance will depend on whether they were aware that the worker was not wearing the PPE at the time of the incident.

For 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 incident occurred. Importantly, the supervisor in charge at the time was aware that the employee was not wearing the protective clothing.

McDonald’s was 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 for you to direct your workers to wear PPE when entering a hazardous area in the workplace.

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