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Obligations to manage excessive hours

Fatigue is more than simply feeling tired or drowsy. Rather fatigue is a state of mental and/or physical exhaustion which can negatively impact on a person’s ability to perform tasks safely and effectively, particularly in a workplace environment.

Fatigue can be caused by a number of factors, including prolonged physical or mental activity, which could be either work or non-work related (or potentially a combination of both). Fatigue can also accumulate over time.

Fatigue can adversely affect health and safety in the workplace as it reduces an individual’s alertness which may then lead to increased errors and a potential increase in incidents and injuries, particularly where the operation of fixed or mobile plant (including motor vehicles) are involved or where an individual is required to undertake critical tasks that require a high level of concentration 

Where employers fail to monitor and implement measures to manage fatigue in the workplace, they run the risk of breaching their duty of care. This an include circumstances where employees are not prevented from working excessive hours when there was a foreseeable risk of psychiatric injury.

An example of this can be found in the case of R v Castricum Brothers Pty Ltd [2016] VSC 466 (18 August 2016).

In this case, a Rendering Plant Manager at an abattoir was found to have been working up to 60 hours per week, including Saturdays. The employee was also required to be on call 24 hours a day, including periods where he was on holidays, including his honeymoon. The increase in hours was largely attributed to breakdown of machinery occurring more frequently following the outsourcing of maintenance work and a reduction in staff numbers.

As the manager’s workload increased, his demeanour reportedly changed, and he became more withdrawn due to stress. He reported to both the operations manager and the managing director that he was suffering from stress-related issues in late 2006. The employee further mentioned his depression and anxiety to the occupational health and safety officer on a spate occasion.

Following having initially reported feeling stressed, the following events occurred:

·         On 20 February 2007, there was a major machinery breakdown which resulted in the manager being required to work longer than usual. The employee had been required to return to work in the evening and to work through the night resulting in him having performed 20 hours over a 26-hour period and remaining on call for the remaining six hours. Upon the completion of this period, the operations manager directed the employee to attend a training session (although it was later reported that she had not realised that he had already been at work for the preceding 24 hours).

·         On 26 February 2007, the manager attended an appointment at the employer’s medical clinic where he complained of experience stress and insomnia. He attended the clinic again the following day due to a sore shoulder.

·         On 28 February 2007, the manager fainted while standing on a small ladder, reportedly from exhaustion. Following this incident, the managing director drove the employee home and spoke with him about potentially stepping down from his role as manager.

·         The employee commenced a period of personal leave from 1 March to 18 March 2007 for which he supplied a ‘generic’ medical certificate. At this time, senior management claimed that they were not aware of the reason for his absence.

·         On 21 March 2007, the manager told the managing director that he had been stressed and overworked for nearly a 12-month period. The managing director reportedly swore at him, told him that “he was not the only manager with problems” and told him to take more personal leave.

·         In early July 2007, another major breakdown occurred at the plant which resulted in the manager having to work excessive hours over multiple days, including the weekend.

·         On 10 July 2007, the employee told the operations manager that he was going to go home as he was feeling exhausted and light-headed. The operations manager reportedly told him not to go home but to follow the example of another employee who continued working despite being unwell.

The manager continued working until he blacked out and was taken to hospital by ambulance.

he Manager did not return to work after this incident and alleged that his working conditions resulted in him developing a psychiatric injury, including depression.

The employer made him redundant on 5 September 2007.

The manager instigated proceedings against the employer in the Supreme Court of Victoria. It was alleged that the employer was negligent as they had failed to provide a safe system of works and a safe workplace by:

·         Requiring him to work excessive hours,

·         Requiring him to be on call 24 hours a day,

·         Failing to listen to his complaints,

·         Failure to carry out a risk assessment of his work.

The manager submitted that a reasonable employer would have:

  • Acknowledged his complaints about excessive hours and investigated the circumstances,
  • Monitored his working hours,
  • Inquired about the conditions for which he sought medical treatment,
  • Reduced his working hours and on-call duties,
  • Required him to take leave if necessary and;
  • Provided him with the resources that he had requested.

While the employer did acknowledge that the manager had worked long hours, they felt that he had known about the hours when he willingly accepted the managerial position. The employer further argued that stress, on its own, was not an indicator that an employee was at risk of a psychiatric injury.

It was held that following the manager having fainted at work in February 2007, his repeated complaints and the subsequent absence in March 2007, the employer could have reasonably been aware that the manager may have been at risk of developing a psychiatric condition due to his working conditions and expectations.

The Justice determined that given the knowledge available to them, both the managing director and the operations manager should have taken the manager’s complaints seriously and sought to put measures in place to prevent the requirement to work excessive hours.

The lack of action taken by the employer resulted in them having breached their duty of care to the manager.

The findings in this case demonstrate that employers should monitor the hours that their employees are working, and where excessive hours are required, offer them support and assistance as needed. Employee complaints about workload or stress should be taken seriously, and be investigated, by employers.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.

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