Misconduct by co-employee not compensable

by Tony Rosenthal, Partner, Mullins Lawyers

Serra v Couran Cove Management Pty Ltd [2012] QSC 130

In the Supreme Court decision of Serra v Couran Cove Management Pty Ltd [2012] QSC 130, His Honour, Mr Justice Douglas dismissed a claim where the Plaintiff was assaulted by a co-employee.

 

Background

The Plaintiff, who worked as an Electrical Mechanic at Couran Cove Resort was attacked by a co-employee, Peter Markan. 

The Plaintiff alleged that Markan should have been dismissed prior to the date that he was assaulted, or alternatively, reprimanded or counselled for earlier misconduct.

The Plaintiff argued that had the employer done this, his injuries would not have occurred. He alleged the Defendant was negligent and in breach of its employment contract. The Plaintiff alleged a number of factors that had to be taken into account which demonstrated the employer’s failure to act in a proper manner to sanction Mr Markan.

The Plaintiff’s supervisor gave evidence to the effect that nothing that he had observed of Mr Markan’s prior behaviour suggested Mr Markan was likely to assault the Plaintiff.

The Court, after consideration of the evidence was not satisfied Mr Markan should have been dismissed by the employer or sanctioned beyond what was already done prior to the date the Plaintiff was assaulted.

 

The Decision

The court applied the reasoning in Antoniak v The Commonwealth 1962 4FLR 454.

Where an employee “is not merely incompetent but by his habitual conduct is likely to prove a source of danger to his fellow employees, the duty lies fairly and squarely on the employers to remove the danger”.

Each case will turn on its own facts.

The assault in this case was serious and Mr Markan was sentenced to four years’ imprisonment after his trial for the offence.

The interaction between Mr Markan and the Plaintiff prior to the assault was not seen by the court to be serious enough to lead to Mr Markan’s dismissal or reprimand beyond what was given to Mr Markan by management.

In a New South Wales case of Gittani Stone Pty Ltd v Pavkovic 2007 (NSWCA) 355 the Plaintiff did succeed where he had been assaulted by a co-employee. The employer failed to take adequate action to reprimand the violent co-employee, and later, the Plaintiff was shot by the rogue employee as he left work.

 

Comment

Misconduct by an employee is a serious issue for employers and should be closely reviewed. Failure to act appropriately to sanction the offending employee could lead to a successful common law claim by an employee who may be injured by a future indiscretion of that employee.



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