Occupation health and safety setback

April 20, 2005

Dale Mills

On April 6, the High Court handed down a decision in the case of Nuha Jamil Koehler v Cerebos (Australia) Limited which represents a setback for workers' health and safety rights.

Koehler, 50, claimed she was unable to cope with the workload she was given in her three-day-a-week job as a merchandiser, setting up displays of goods in Perth supermarkets. She had worked as a full-time sales representative for 18 months, negotiating sales of Cerebos's products to independent supermarkets. When Cerebos lost the right to distribute a brand of tea, it retrenched her.

On her first day, when Koehler was shown the list of stores for which she would be responsible, she said she could not possibly cover them all in three days, but her supervisor asked her to try it for a month. After five months in the new position she consulted her doctor about aches and pains from lifting boxes of goods. Koehler was eventually diagnosed with fibromyalgia syndrome, a psycho-physical disorder resulting in severe pain, and a depressive illness, both caused by her work.

Koehler sued Cerebos, alleging its failure to take the steps she suggested breached its duty to provide a "safe system of work". The Western Australian District Court found that Koehler's workload had been excessive and that Cerebos had failed in its duty to ensure all reasonable steps were taken to provide a safe system of work. The court awarded Koehler $856,742 in damages.

Cerebos appealled the decision to the WA Supreme Court, which ruled that the company could not reasonably have foreseen that Koehler's duties exposed her to a risk of psychiatric injury. She appealed this verdict to the High Court, which unanimously rejected her appeal.

The High Court ruled that by trying to do the impossible, Koehler had suffered psychiatric injury, but that her right to sue was waived by her "agreeing" to do the work. The court seemed not to appreciate that workers in vulnerable situations might put in above the normal efforts to avoid being sacked.

Not surprisingly, employer organisations have welcomed the decision. The Australian Chamber of Commerce and Industry said that the court's decision should be enshrined in occupational health and safety statutes in every Australian state.

From Green Left Weekly, April 20, 2005.
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