A wake up call for employers – legal liability to shift workers and ‘fly-in, fly out’ employees

by DLA Piper
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Australia’s increasingly flexible workforce means we no longer all work from nine until five. Family commitments, the prospects of better pay, study commitments and countless other factors are all influencing when we work, where we work and how far we’re prepared to travel to get to work.

The problem for people working outside of ‘normal’ hours is that they often have to stay awake to fit in with what the rest of us are doing. 

The Western Australian Court of Appeal’s decision in Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 highlights the risks associated with sleep deprivation through shift work, and reinforces that an employer’s duty to take reasonable care goes far beyond situations where an employee can be injured during the course of his or her employment.

Ms Fraser finished an eight-hour shift as a croupier at the Burswood Casino in Perth. She started on her long drive home just after four in the morning. After driving for a while, her car began to veer off the road. She panicked and attempted to steer back on course, but she pressed too hard on the brakes and over-steered. Her car collided with the median strip and then rolled a number of times. 

Ms Fraser sued her employer for damages for the injuries she suffered in the accident. She alleged that she had fallen into a ‘micro-sleep’ as a result of an accumulated sleep debt arising out of her employment. She argued that this had caused her to drive off the road, even though she conceded that she panicked and, as a result of panicking, braked too heavily and over-steered. She argued that the risk of her falling asleep while driving home would have been reduced if her shift had finished before 2.00 am. She also alleged that, if her shift had finished at or after 6.00 am, the risk of her falling asleep while driving home would have been reduced because she would have been driving in daylight. She claimed that, if she had been warned of the risk of falling asleep while driving home in the hours of darkness, she might have either waited until it was light before driving home, or asked to be placed on a shift which finished at or after 6.00 am.

The trial judge dismissed Ms Fraser’s claim that her employer had a duty to arrange her shift times so she could start driving home at or after sunrise or alternatively at 6.00 am. However, he did find that that the employer had a duty to warn Ms Fraser of the risk of falling asleep while driving home.

Ms Fraser lost her case at both the trial level and on appeal because she could not prove that the accident had been caused by her falling asleep at the wheel or that a warning from her employer about the risk of falling asleep would have altered her actions or prevented the accident from occurring.

Of significance for employers of shift workers, the Court of Appeal affirmed the trial judge’s finding that Ms Fraser’s employer had a duty to warn her of the increased risk of having an accident while driving home due to fatigue. The Court found that the employer had breached its duty of care to Ms Fraser when it failed to warn her of this increased risk, the reasons she was at risk personally and the effect the risk had on her as a nightshift worker. The Court held that a reasonable warning in the circumstances would have included full details of the identified and known indicators that point to the onset of fatigue and sleepiness, and given the employee an opportunity to take appropriate steps to minimise any risk to their own safety or, to the safety of others who may be affected by their driving.  

The case demonstrates that an employer’s non-delegable duty of care can extend to employees’ own travel arrangements following the completion of shifts in areas of work that have characteristically unconventional working hours. This is of particular relevance in the resources and mining sectors (where workers are commonly rostered on a fly-in-fly-out basis) and the health care, logistics, transport and the hospitality industries. The Court of Appeal’s decision should serve as a reminder that employers must implement policies and procedures to ensure that their employees are aware of the increased risk of having an accident while driving home due to fatigue arising out of accumulated sleep debt in order to avoid liability.

(As an interesting aside, numerous Australian and overseas studies have found a link between sleep deprivation, fatigue and motor vehicle accidents. A study conducted at Melbourne’s Alfred Hospital sought to identify the contribution of sleepiness to the risk of a motor vehicle accidents in injured drivers, independent of drugs and alcohol. Shift work was identified as the greatest sleep-related identified as contributing to motor vehicle accidents. Of the drivers interviewed as part of the study, 48% reported regular shift work and 33% had worked a shift immediately before their accident.)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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