Occupational safety would seem to be simple to many but it is actually a quite complex subject and takes on many forms and levels of responsibility. Indeed, both the employees and employer alike have their burdens to meet in terms of preparation, procurement and safety of resources and when they must or must act in a certain way so as to uphold the security and safety of everyone in the company with people directly in harm's way being the ones that must be protected the most vigilantly. This report focuses in large part on an occupational health and safety legal case, that being Kirk v, Industrial Relations Commission of New South Wales (NSW). While employees bear a strong burden to protect themselves as well as others in the workplace, there are several dimensions that ultimately fall on the employer without fail at some level or another and the Kirk case backstory and decisions proved this clearly but courts not following the right procedure and justifying their decisions and outcomes properly can lead to an invalidation and negation of any decisions rendered.
The Kirk case and others like it proved a modicum of legal precedent and in a number of forms. One example of this is the idea would be the concept of jurisdiction and what can or cannot be considered in a case irrespective of whether the facts or data in question are immediately and specifically mundane to the case or not (Nash, 2011, p. 224). Not only is jurisdiction and the scope of the evidence important, also vital to consider is how regulations and laws can be interpreted and what the intent of the law was in the first place. Basic and straightforward to some, the wrong verbiage or words that give too much discretion or lack specificity can cause a legal headache of large proportions if certain legal scholars or legal cases make the verbiage murky. The Kirk case centered on the fate of poor Mr. Palmer. He was an employee for a Kirk-owned farm and he was transporting a collection of metal pipes by pulling them with an all-terrain vehicle. The vehicle over-turned and Palmer ended dying of injuries sustained in that accident (Foster, 2010).
This report is going to point to two general principles that both center around legal principles as well as occupational safety regulations and what can happen when one's proverbial ducks are not in a row when investigating and/or prosecuting companies for actions done or actions left undone. Employers are generally held to have a high burden in ensuring employees follow the right safety procedures but legal authorities punishing the misdeeds of these employers need to ensure that they follow the proper procedures, protocols and so forth lest a decision, as righteous as it may be, be struck down on a technicality due to incompetence or mistakes. In the case of Kirk, multiple courts and venues said that the Kirk firm was guilty but the decision was later struck down for two major reasons. The first was that the Industrial Court convicted Kirk without specifically citing the parts of the law that justified the decision. The second reason was that Kirk was called as a witness to the prosecution in his own trial and this is a fairly severe transgression. Further, there had been a long-standing provision in the New South Wales (NSW) legal system that stated that the NSW Court of Appeals was barred form deciding appeals from the Industrial Court on the premise that they were final and beyond review or reversal. While this rule of not allowing the higher courts to reverse such decisions is generally upheld, it is also true that there are exceptions for jurisdictional error which is precisely what happened in the Kirk case. In general, the principle that the Industrial Court does indeed have the right to review industrial deaths and render penalties in reaction, there are certain rules and tenets of justice in NSW case law and precedent that should never be violated but the Industrial Court unquestionably erred when engaging in the two errors mentioned above (Foster, 2010). There are some rules of evidence that the court can waived, as named and enumerated in s 190. However, there are other rules of evidence that can never be waived under any circumstance and the prosecutorial guideline violated in the Kirk case is one them (Kirk v. Industrial, 2014).
Even with the staggering amount of incompetence engaged in by the Industrial Court, the questions posed and considered about employers responsibility relative to employee safety are still worthy of review and precisely that can occur with the Kirk case. Employers have often reacted to this condition in a negative way as they say the scope of what they can be held responsible for is too wide and employees should bear more of the burden. Beyond that, the perceived rules seem to differ from state to state with Australia. For example, the rules differ tangibly in New South Wales and Victoria. Victoria and other states point to "reasonable" measures that are required from employers to ensure safety. In comparison, New South Wales uses the phrase that employers "must" ensure the safety of their employees and there is no limitation placed on the scope of that safety protection. For example, if an employee is hurt in Victoria and the injury is due to the employee's gross negligence, the chances of liability being rendered to the employer in a relevant decision is slim. However, due to the different verbiage used in the New South Wales rules, interpreting the rule as written would seem to make all accidents the fault of the employer even if the employee's actions or inactions are the direct cause (Reeve & McCallum, 2011). The Australian/New Zealand standards of risk management and other related topics talk about risk in terms of contributing factors and the likelihood of certain events and conditions leading to problems. As such, to portend that an employer is always liable if an employee has an accident would seemingly be specious (Standards Australia, 2014).
The review above brings out two major principles that any employer or employee should keep in mind when operating in the workplace and the culpability of employers if and when an accident happens. Indeed, the details of the Kirk case make it quite clear that Palmer actually seemed to contribute to his own demise far and beyond what anyone else actually did. As it turns out, the single event that led to Palmer's death was not the fact that he was using an all-terrain vehicle to haul the steel but rather the fact that he decided to go down a steep hill with the steel in tow even though there was an accessible road that would have accomplished the same task without it being so risky and the chances it would have led to Palmer's death would have been infinitesimally smaller. This fact alone begs the question why the Industrial Court even tried to bring action against Kirk to begin with. Unless it could be established that Kirk or someone else with the employer asked Palmer to take the path he did, then the chances the employer could reasonably be held responsible stretches both logic and reason. That said, the court seemed to have been following the aforementioned phrase "(e)very employer shall ensure the health, safety and welfare at work of all of the employer's employees." This might sound good on its face but it actually seemingly holds employers for every possible incident or accident at an employer and to suggest that this is equitable or fair is egregiously untrue. The verbiage used by other Australian states, that which includes the word "reasonable," would seem to draw a line between what is negligent of the employer as well as the employee.
For example, if an employee assaults another employee and the first employee is immediately fired, than the employer has seemingly done what they could to prevent a recurrence and they presumably did not know the employee would have done that in the first place. Unless the employee had a violent or criminal history, the employer would have had no way of knowing. However, if the employee had a violent criminal history and the employer hired them anyway, then the employer could absolutely be on the hook from a vicarious liability standpoint. To point to a more occupational safety example, if an employer knows an employee is driving recklessly in a company vehicle and the employee ends up killing someone as a result, then the employee should indeed be on the hook regardless of jurisdiction. However, if the employer had no knowledge or reasonable expectation of knowing and the same thing happened, then a state like Victoria would not hold him liable as the employer was not given a fair chance to address the problem but the verbiage in NSW would seem to treat that detail with ambivalence.