By Carlen Lowe and Clint Kanther

You’ve got an employee who’s just finished working four straight days of 12-hour shifts. He lives five hours away. At the end of his last shift, he elects to drive home. Three hours into his journey he falls asleep at the wheel and has a single vehicle accident.

As his employer, are you liable? Do you know where liability for you as the employer ends when a worker finishes their shift?

This is the question that was faced by BM Alliance Coal Operations Pty Limited & Ors when this exact scenario happened to their employee Mr Kerle in 2016. In this case the Plaintiff was successful, and the judgement has a number of implications for employers when it comes to their liability and management of employee fatigue.

But before we look specifically at the case and it’s implications, let’s take a look more broadly at what fatigue management is, and what it’s impacts are.

 What is fatigue?

 When most of us think about fatigue, we simply think about lack of sleep. But while it’s an area of science that is continuing to develop, from a legal perspective fatigue is about much more than just a lack of sleep.

There are four factors which result in fatigue and they can either occur either in isolation or in combination:

  1. Inadequate sleep – How much sleep is enough? This is an elusive and ambiguous concept as the amount of sleep required differs greatly between individuals, and changes as people age. Current studies suggest 7.5 to 8.5 hours per night is the norm. Inadequate sleep can be caused by both health and emotional issues as well as external causes.
  1. Circadian disruption – Most of us are familiar with circadian rhythm as the ‘body clock’. These rhythms regulate the different functions of the body on a 24-hour cycle, and impairment occurs when wake times are out of synch with the rhythms. Disruption to the circadian rhythm is particularly relevant to shift workers.
  1. Job demands and time-on-task – This mostly relates to employees who undertake repetitive tasks and have long work hours. The most obvious example are truck drivers who spend a large amount of time doing one task. Time-on-task studies show that increased shift length increases the risk of errors. Consecutive or split-shifts would also fall under this category.
  1. Environmental conditions – This relates to workers who may get fatigued from working in demanding environments such as being exposed to heat, cold, and/or noisy environments, or having to work with machinery that cause vibrations.

What are the consequences of fatigue?

There are a number of economic, social and environmental costs and consequences associated with fatigue:

  • Studies have shown that 17 hours of wakefulness is similar to having a blood alcohol reading (BAC) of 0.05, and after 24 hours can be equivalent to double the legal BAC limit.
  • Fatigue has been proven to be a cause of accidents in workplace. There are a number of high profile cases that demonstrate this causal linkage, such as the Exxon Valdez oil spill, and the Three Mile Island and Chernobyl nuclear disasters.
  • Fatigued workers may exhibit decreased cognitive performance. This is particularly relevant to mentally demanding tasks or jobs that require critical thinking.
  • Increased errors and reduced vigilance which could place workers, co-workers or third parties in danger.
  • Fatigue also results in slower completion rates and decreased work performance.
  • There are potential long-term health effects for employees who suffer from fatigue, including heart disease, diabetes, anxiety and depression.

Strong evidence suggests it’s in an employer’s best interest to proactively manage employee fatigue in the workplace. But at what point does the responsibility of the employer end and the worker begin?

Recent outcomes of fatigue management cases – Kerle

The outcome of Kerle v BM Alliance Coal Operations Pty Limited & Ors [2016] QSC 304 is an important case to look at when considering the scope of an employer’s duty and potential liability for claims when it comes to fatigue management.

In this matter, the Court found that the employer created the risk due to the length and consecutive nature of the shifts that Mr Kerle worked, knowing that he lived a five-hour drive away and would likely drive home from work at the end of his last shift.

There were several factors discussed as part of this finding that are particularly relevant to employers:

  1. A self-assessment by the worker of their own fatigue is not considered relevant – sleep experts advised that a tired person cannot make a proper judgement of their own level of fatigue, so the employer needs to have protective measures in place.
  2. The employer is in charge of both the risk and the solution.
  3. Education – what should have the employer known and what was done to mitigate the risk? In the case of Kerle, it was remote work and all employees had to travel some distance to get to the work site, with no public transport available. Therefore, if you as the employer are aware that people will be driving relatively long distances following their shifts, how you have catered to this will be assessed. For example, should you have provided transport options for staff so they don’t have to drive themselves?
  4. What literature did the employer access to assist them with their fatigue management policy? In the Kerle case, reference was made to the Digger Deeper Report that was publicly available, and whether this had been used by the employer. The court’s view is that it’s your responsibility as the employer to be informed.
  5. The claim was brought against the operator of the mine and the Claimant’s employer, a labour hire company. The court held that the labour hire company, as an employer had the same obligation as the mine operator to ensure it was aware of the risks associated with the mining industry, fatigue management and industry best practices.

It’s also important to note that the Kerle judgement opens the door for liability beyond the employee’s journey if a causal connection can be made.

Recent Outcomes of Fatigue Management cases – Fraser

The concept that an employer is responsible for the state of its workers and can be held liable for injury even after they leave work had previously been addressed in the case of Fraser v Burswood Resort (Management) Ltd [2012] WADC 175 The issue raised in this matter was that a plaintiff must still demonstrate a strong causal link between work-induced fatigue and the incident in order for an employer to be found liable.

In this case, the Plaintiff was a croupier at the Burswood Casino. She drove home after a 12-hour shift and had a single vehicle accident during the 45-minute trip after momentarily falling asleep behind the wheel. She woke to find her vehicle veering off the road causing her to take corrective actions which led to the vehicle losing control and rolling over. After a number of years had passed, she sued her employer in the District Court for damages.

The plaintiff alleged that her employer was responsible as they had not provided adequate information or training on tiredness and fatigue, had failed to warn her of the dangers of shift work, and did not have a protocol in place to address employee fatigue caused by night shift. The Court confirmed that employers have a duty of care to take account of the risks of fatigue and to provide appropriate strategies to address that risk.

Although the Court found that Burswood had breached that duty, in this case, the plaintiff was unsuccessful in her claim. Judge Stevenson said he was not persuaded, on the balance of probabilities, that the plaintiff fell asleep at the wheel, causing the accident, and that it was just as probable the accident was caused by her own carelessness or inattention.

What can employers do to better plan for and manage employee fatigue?

The starting point for many employers has historically been limited to adherence with industry specific regulations and standards relating to fatigue management.  Decisions as Kerle are a clear indication that a mere regurgitation of industry guidelines to its workers during an induction is insufficient.

As our understanding of fatigue and how to manage it, continues to change, employers now need to ensure that they maintain an awareness of the developments both within their own industries, as well as broader education on fatigue management strategies.

These days, a multidimensional approach to fatigue is needed.  Instead of steadfastly adhering to Regulations relating to, for example, prescribed work hours, consideration must be given to things like:

  • Identifying the factors which may cause fatigue in the workplace. Are they fly in fly out workers? Are they shift workers? Are the hours they work reasonable? Are the work duties repetitive or do they work in a difficult environment? Is the work mentally demanding for long periods?
  • Educating employees, supervisors and managers about fatigue. They all play a crucial role in identifying, monitoring, and managing the risk.
  • Along with education, there must also be controls and strategies built into the policies so that employees know how to respond when fatigue is identified. This could be:
    • Temporary task re-allocation.
    • Permission to take increased breaks.
    • Rescheduling rosters.
  • And as part of employer’s risk assessment for fatigue, risk reduction strategies could be implemented so that fatigue becomes less of a factor. For example airline pilots are required to make preparations for landing well ahead of the event.  This reduces fatigue based errors when time-critical decisions are being made during landing.
  • John Salter, Director of our HR/IR consultancy, BTS Accord says that you should ensure that all employees have a specific clause relating to fatigue in their Contract of Employment. He says ‘You need to go beyond just having a policy, you need to have specific conditions in your employment contracts, such as ‘you will not drive for X hours after working a shift of X hours’’.
  • If you do restrict staff from travelling when their shifts end, you might need to ‘pay them to sleep’.
  • Explore the literature available for your industry, as well as other industries, for ideas on what you can put in place – you need to be able to demonstrate that you have gone the extra mile to implement practices and procedures that are best industry practice.
  • Don’t just set up shifts to meet commercial needs, but to minimise fatigue and match circadian rhythms.
  • Get an expert to help with your rostering.
  • As always, make sure you document everything – all the training and education you do, and all of the conversations you have with individual staff about fatigue.

When you do get a claim, thoroughly investigate what other actions might have contributed.

If you’d like more ideas, Safe Work Australia has published a Guide for Managing the Risk of Fatigue at Work which you can access here:

http://www.safeworkaustralia.gov.au/sites/swa/about/publications/pages/guide-fatigue-at-work