Your questions answered: Are we responsible for an injured worker who is no longer employed with us?

By Portner Press on June 6th, 2019
  1. Work Health & Safety Act
  2. Workplace health & safety regulations

We recently held a farewell party for a staff member on her last day. At the party, she tripped over and injured herself. We conducted an investigation and I have contacted her to see that she is ok.

I just wanted to find out if there is anything more we need to do from our end? As she is no longer employed with us, I wasn’t too sure where we stand. We are based in NSW.

Following an injury, if you have conducted an investigation and considered what steps could be taken to eliminate or mitigate the risk that eventuated, the other matter to be consider is whether any notification requirements are triggered.

Under NSW workplace health and safety laws, a person conducting a business or undertaking has a duty to report notifiable incidents to the regulator immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred. This obligation is set out in Part 3 of the Work Health and Safety Act 2011.

This means that two elements must be satisfied before you are required to notify the regulator, that is:

  1. A notifiable incident must have occurred; and
  2. The notifiable incident must arise in the conduct of the business or undertaking.

A notifiable incident includes a serious injury. A serious injury means an injury which requires the injured person to have:

  1. Immediate treatment as an in-patient in a hospital, or
  2. Immediate treatment for:
  1. the amputation of any part of his or her body, or
  2. a serious head injury, or
  3. a serious eye injury, or
  4. a serious burn, or
  5. the separation of his or her skin from an underlying tissue (such as degloving or scalping), or
  6. a spinal injury, or
  7. the loss of a bodily function, or
  8. serious lacerations, or
  1. Medical treatment within 48 hours of exposure to a substance, and includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.

It may be that the injury sustained by your former worker is not a serious injury, as defined above, in which case, there is no obligation to report the incident.

The person who is injured does not have to be an employee or worker, it can be any other person, so long as the incident arises in the conduct of your business or undertaking.

Whether the incident has occurred in the conduct of a ‘business’ or ‘undertaking’ is another issue. If this was a work event, it will likely be considered to be ‘in the conduct of a business or undertaking’.

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