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Duty of care includes protecting employees from violence outside of work

Written by: Jessica Lee

Article Overview: The NSW Court of Appeal recently upheld a decision of the District Court that a Company had breached its duty of care to an employee by not sacking or disciplining an employee ("the shooter") about his outbursts at work, in circumstances where the shooter later shot another employee three times with a gun outside work hours in a street outside the workplace.

Duty of care includes protecting employees from violence outside of work

The Company argued that the shooting was not caused by its negligence. The Court found that the shooting probably would not have occurred had the Company not breached its duty of care. In this case, it was found that the Company had not meaningfully disciplined the shooter in regard to previous violent incidents at work and had discouraged an assaulted employee’s suggestion that the matter be reported to the police. Further, the Company had indicated to the assaulted employee that if a further incident occurred then the shooter and the assaulted employee would both be required to leave the workplace. The Court concluded that the Company breached its duty of care by not sacking or disciplining the shooter over these previous violent incidents.

The Company also argued that it could not foresee that the shooter would shoot another employee. The Court rejected this argument and found that previous friction between the employees had made it foreseeable that other employees would be at risk of injury. The previous friction included the shooter punching an employee in the head and picking up a heavy bar and being restrained by other employees to prevent the shooter from hitting the employee with the heavy bar.

The Court concluded that the duty of care can extend to protecting employees from the criminal behaviour of third parties, including their fellow employees. The Court of Appeal upheld the decision of the District Court to award $861,197 in damages to the employee that the shooter had shot.

HR Tip:

This case shows that employers need to treat very seriously incidents of violence and potential violence in the workplace and must discipline employees appropriately in order to comply with their duty of care responsibilities to employees.

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Article Tags: court concluded that, court of appeal, criminal behaviour, damages, duty of care, fellow employees, friction, hr tip, negligence, regard, risk, shooter, suggestion, third parties, violence in the workplace, violent incidents



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