Defendants operating a café have received judgement from the South Australian Employment Tribunal (SAET) following an incident where a young casual worker sustained serious burns in August 2018.
H & T Cook Enterprises Pty Ltd were convicted with no penalty imposed due to its lack of income or assets. The second defendant, Tiarne Cook who was a director of H & T Cook Enterprises Pty Ltd received no recorded conviction but received a fine and was ordered to pay costs and the Victims of Crime Levy.
On 15 August 2018 a worker at the cafe was in the process of refuelling an ethanol burner located in the dining area when a fireball erupted, engulfing the young worker. The worker sustained burns to her face, hands, ears and neck.
SafeWork SA prosecuted H & T Cook Enterprises Pty Ltd, and, Tiarne Cook, who operated Royal Copenhagen Café at Brighton for a breach of section 32 of the Work Health and Safety Act 2012 (SA) for failing to comply with their section 19 duty to ensure the health and safety of workers whilst at work.
H&T Cook Enterprises pleaded guilty to a breach of its health and safety duty under the Work Health and Safety Act 2012 (SA) and a conviction was recorded. As the company has since sold the café and no longer has assets or income, no fine was imposed. SAET said that it would have imposed a fine of $110,000 before application of the sentencing discount for an early guilty plea if the company had had any assets or income.
Tiarne Cook pleaded guilty to a breach of her health and safety duty under the Work Health and Safety Act 2012 (SA) and was fined $18,000 (after reduction of 40% for her early plea of guilty) with no conviction recorded. The defendant was also directed to pay SafeWork SA's legal costs, court costs and the Victims of Crime Levy.
H & T Cook Enterprises failed to:
- ensure the burner was refuelled in accordance with manufacturer’s operating instructions or otherwise in a safe manner
- provide all workers with written instructions to refuel the burner in accordance with the manufacturer’s operating instructions or otherwise in a safe manner
- train all workers to refuel the burner with the burner mouth closed, with use of the manufacturer’s jerry can, and with use of the manufacturer’s dedicated refuelling point
- adequately train workers to require the ethanol burner to cool for at least 30 minutes before refuelling
- supervise the refuelling of the burner.
As the Director of the business, Tiarne Cook failed to:
- exercise due diligence to ensure that H&T Cook Enterprises complied with its health and safety duty
- train the employee to refuel the burner without ensuring that the employee knew it should be refuelled only when completely cool, when shut off, and by use of the specialised jerry can through the dedicated refuelling point.
These failures exposed individuals to a risk of serious injury.
SafeWork SA Executive Director, Martyn Campbell said it is the responsibility of the employers to pay specific attention to ensure that young workers are properly trained and supervised, and provided with sufficient information to work safely.
“It is important for business owners to have safe systems in place including training and supervision when employing young, casual and inexperienced workers to ensure their safety at work.
"Many young workers may be working for the first time and do not have the experience and awareness to identify safety risks or hazards, making them a vulnerable group in the workplace”, said Mr Campbell.
“I cannot stress enough the importance of business owners meeting their work health safety duties in providing extra care to this vulnerable group of workers”.
In making his decision, Deputy President Magistrate Cole took into account an early plea and the defendant’s contrition, no record of offending and her future prospects in having a recorded conviction, saying, ‘the decision to not record a conviction against the second defendant is not to be taken as in any way diminishing the seriousness of the breach, or to diminish the impact which this incident has had on the victim”.