By Mike Toten Freelance Writer

Two business partners were fined $21,600 each for allowing a guard on a dangerous work machine to be removed. When an employee tripped on the factory floor and her hand landed on the rotating blade of the machine, three of her fingers were amputated and her thumb lacerated.

 

Facts of case

The machine was a feed auger at a piggery. It was used to transfer food for pigs to a silo for storage. While the employee was walking around the auger to operate its controls, she tripped and her right hand landed on the machine’s rotating flight blade when she tried to brace her fall. It severed three of her fingers. They could not be reattached.

The auger originally had a guard fitted, and a risk assessment had identified it as potentially dangerous without one, because trips and falls were very likely to occur next to it. The employer’s policy at the time was that a risk assessment was required before any guard on a machine could be removed. In this case, the guard was a poor fit, so it was taken off and put back on many times until it became damaged and was left off permanently. When the employee was trained to use the auger, it was in its permanently unguarded state and she was warned to stay clear of the moving flight blade.

The employer later designed a better-fitting guard and installed it permanently on the auger.

 

Decision

The South Australian Employment Court found that, while the employer had in place various WHS policies including a policy of guards on machines, it was not implemented in this case. The Court described the risk as “objectively obvious” and said that the employer had a “disconnect between policy and practice”. It had previously received a prohibition notice and six safety compliance notices, in addition to the prohibition notice resulting from this case. 

The Court treated the business partners as individuals instead of a corporation, and fined them each $21,600, discounted by 40% for an early guilty plea. Convictions were recorded.

 

What this means for employers

It is insufficient to have WHS policies “on the books”. The policies must actually be implemented, and all employees should be trained in how to comply with them. Not doing so may be regarded as failure to ensure a safe work environment. 

 

Read the judgment

Farrell v Peter Schmidt and Ashley Schmidt [2024] SAET 102 (20 November 2024)