|Defendant||Pageys Pty Ltd|
|Trading Name||Chicken Treat Collie|
|Section||19(1) & 19A(3) & 3A(2)(b)(i)|
|Offence Date||17 October 2010|
|Description of Breach(es)||
Being an employer, failed, so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards, contrary to sections 19(1) and 19A(3) of the Occupational Safety and Health Act 1984
The Accused was a corporation that, trading as Chicken Treat Collie, operated a franchised fast food business from premises located at the corner of Prinsep and Forrest Streets, Collie (Workplace).
The Accused had three directors and one of the directors also worked as a manager at the Workplace.
As at 17 October 2010, the Accused was the employer of the following persons at the Workplace, in the following capacities.
(a) Duty manager (age 23)
(b) Kitchen hand (age 18)
(c) Kitchen hand (age 15)
(d) Cashier (age 17)
(e) Cashier (age 18)
The duty manager had been a manager at the Workplace since June 2010. In this role her duties included supervising other employees; counting money received; cleaning cooking equipment; performing stocktake; and supplementary kitchen hand and cashier duties as required.
Cooking frozen peas in the microwave was a regular task for kitchen hands at the Workplace. The peas were supplied by an official Chicken Treat franchise supplier in white 2-kilogram bags. There were no cooking instructions on the bags.
As at 17 October 2010, the standard procedure followed at the Workplace for cooking peas was to:
1. add 1 or 2 kilograms of frozen peas to a designated container (Peas Container);
2. add water to cover the peas (either hot water from the tap or boiling water from the urn: the procedure was inconsistent among employees in this regard);
3. add pea salt;
4. put on the lid of the Peas Container;
5. microwave the Peas Container for 10 minutes (the pre-programmed cooking time, which was input by pressing the square button labelled ‘0' on the microwave);
6. remove the Peas Container from the microwave;
7. drain off some of the water into the sink, located 4 to 5 metres from the microwave, if necessary; and
8. empty the cooked peas into the bain-marie.
The microwave was a Panasonic NE1856, with a power output of 1800W (Microwave).
17 October 2010
On 17 October 2010 at approximately 7:30 p.m., the duty manager, two kitchen hands and two cashiers were at work at the Workplace.
Just before 7:30 p.m., the duty manager was helping a kitchen hand restock the kitchen.
One of the kitchen hands had put some frozen peas in the Microwave to cook. When the Microwave beeped to indicate that the peas were cooked, the duty manager went to take the peas out of the Microwave.
The top of the Microwave was approximately 1.65 metres above ground. Its tray was approximately 1.43 metres above ground, which was approximately shoulder height on the duty manager.
The Peas Container was used solely at the Workplace for cooking frozen peas. It was a large, square, clear plastic container of the kind generally available from supermarkets. It did not have handles. It was not supplied by an official Chicken Treat franchise supplier. Although the Peas Container had a clear plastic lid, the lid was slightly warped as a result of long-term use in the microwaves at the Workplace. This made it difficult to put it on properly. The lid also tended to loosen as a result of steam rising during cooking.
The Peas Container itself was also somewhat warped from continued use, and tended to temporarily warp further when heated in the microwaves at the Workplace.
The duty manager had her hands under and on the sides of the Peas Container when she took it out of the Microwave on 17 October 2010. She believed that the lid was properly on the Peas Container. However, when she removed the container from the Microwave, the lid slipped off. She tried to keep the lid on with her thumbs, as there was steam escaping. The container itself, which had lost integrity in the Microwave, buckled inwards and slipped in her hand.
As a result, the contents of the Peas Container (the water and peas), which were boiling hot, spilled out and across the duty manager's breasts and chest. She dropped the Peas Container and ran to the bathroom. The other employees brought her cold water and ice packs, which she applied to her breasts.
The duty manager drove herself to hospital, where she was diagnosed with deep dermal burns to the left breast and superficial burns to the right breast. She was immediately given morphine and her burns were treated with wet dressings. She remained in hospital for two days, until 19 October 2010. She was treated with morphine and her burns were redressed. For two weeks the duty manager had to see a doctor every other day for redressing.
Approximately two and a half weeks after her injury, the duty manager's burns were diagnosed as being infected. As a result, she underwent surgery the next day, 3 November 2010, under general anaesthetic, to have the necrotic tissue debrided.
The duty manager was subsequently referred for skin grafts. She successfully underwent split skin grafts from her left thigh, and further debridement, on 12 November 2010, and remained in hospital until 18 November 2010.
The duty manager was subsequently diagnosed as unfit to return to work until at least 5 December 2010.
Systems of work as at 17 October 2010
(1) Safe work procedures
Prior to the Accused purchasing the business in 2007, peas were boiled in a bain-marie on a stove. When the Accused took over the business in 2007, it had the Workplace renovated and removed the stove. From then on, peas were cooked in microwaves.
As at 17 October 2010, the Accused had a written procedure for the cooking of peas (Peas Procedure), supplied by the head office of the Chicken Treat franchise in WA.
The Peas Procedure explained safe methods for cooking frozen peas on the stove and in the microwave. In relation to the use of a microwave, the Peas Procedure:
Although the Peas Procedure was available at the Workplace, the procedure was not specifically shown or referred to employees during training, induction or otherwise.
As at 17 October 2010, the duty manager had never seen the Peas Procedure or any manual or written procedure for the microwaves at the Workplace; the other kitchen hands on duty.
The duty manager had undergone Chicken Treat manager training between June and July 2010, including a week's training in kitchen hand duties. This training included demonstration of the procedures for cooking peas at the Workplace, described above.
The Accused treated the Peas Procedure as a safe work procedure (SWP), and had not conducted any further risk assessment or job safety analysis (JSA) in relation to the cooking of peas at the Workplace as at 17 October 2010.
(2) Safe equipment
Prior to her accident on 17 October 2010, the duty manager had voiced concerns about the Peas Container with other staff, although not with the directors.
The kitchen hands had also expressed concerns to the manager/director as to the dangers of hot water spilling out of the warped Peas Container when it was removed from the microwave.
However, as at 17 October 2010, no other container was provided by the Accused for cooking peas. There was another smaller, sturdier container with handles, designated to be used to cook carrots in the microwave.
As at 17 October 2010, containers with vented and/or clip-lock lids, designed for cooking (as opposed to simply reheating) in microwave were readily available from supermarkets.
A few weeks after the duty manager's incident on 17 October 2010, the Accused purchased, from a supermarket, a new container with a clip lock lid, enabling the lid to be locked in place during cooking.
The Accused arranged for small venting holes to be punched in its lid to allow steam to escape during cooking.
The procedure for cooking peas, as described above, otherwise remained unchanged.
(3) Personal protective equipment (PPE)
As at 17 October 2010, the Accused provided protective gloves for removing cooked chickens from the rotisserie, latex gloves for food preparation, and dish washing gloves. No protective gloves were provided specifically for removing hot items from the microwaves.
The protective gloves for the rotisserie were large and considered by employees at the Workplace to be inevitably greasy and difficult or even dangerous to use for relatively fine tasks such as removing the Peas Container from the microwave.
In any event, neither the manager/director nor any of the Accused's employees, consistently used those gloves to remove the Peas Container from the microwave. Neither the duty manager nor any of the other employees had been trained or instructed to do so.
The duty manager did not use the gloves when she removed the Peas Container on 17 October 2010.
Other kitchen hands, would often use paper towels to remove the Peas Container. The manager/director also preferred to use paper towels rather than gloves.
The sister of one of the kitchen hands, who was herself formerly employed as a kitchen hand at the Workplace by the Accused, had previously suffered burns as a result of the Peas Container buckling when taken out of the microwave, albeit less seriously than the duty manager.
The former kitchen hand was using a long-sleeved jumper as hand protection to remove the Peas Container from the microwave after cooking peas. This was her usual practice. The container buckled on removal, sending boiling water out over her sleeve and arm. The manager/director was aware of the circumstances of this accident.
However, the Accused did not make any changes to its procedures following the former kitchen hand's accident.
Another former employee of the Accused had previously had a ‘near miss' as a result of a spill when removing the Peas Container from the microwave.
Subsequent to 17 October 2010, the Accused purchased another pair of protective gloves to be used specifically for removing hot items from the microwaves.
Practicable measures that could have been taken
Prior to and as at 17 October 2010, it was reasonably practicable for the Accused to have:
1. conducted a risk assessment or JSA in relation to the cooking of peas in the microwaves at the Workplace; and, as a result,
2. provided a container for cooking peas in the Microwave that:
(a) had a firmly fixable lid and vents to allow steam to escape during cooking; and/or
(b) was of sufficient integrity that it would not be susceptible to warping or weakening during cooking in the microwave; and/or
(c) had handles; and/or
3. provided PPE, namely heat-proof gloves, appropriate for the removal of cooked peas from the Microwave; and/or
4. ensured that all employees who might be required to cook peas in the Microwave had been adequately trained in safe work procedures for doing so (SWP), including as to:
(a) the use of the container referred to in (2) above; and/or
(b) the use of the PPE referred to in (3) above; and/or
(c) not overheating the peas; and/or
(d) not adding boiling water to the peas before microwaving; and/or
5. implemented and enforced the use of the SWP at the Workplace.
Taking any or all of these measures would have mitigated the risk of the duty manager spilling the contents of the Peas Container on her chest, and consequently suffering the injuries referred to above, on 17 October 2010.
The Accused entered a plea of guilty and was convicted. The Magistrate fined the Accused $11,000 ( after reduction for limited means to pay, an early plea and other mitigating factors).
|Conviction Date||27 Nov 2013|
|Court||Magistrates Court of Western Australia - Collie|