DID you know that even a negligent employee who gets injured on the job because of their own conduct can still be awarded compensation from their employer for those injuries?

It is a well-established legal principle that an employer has a duty to take reasonable care to ensure the safety of their employees. Employers are required to provide competent staff, adequate plant and equipment, a safe place of work and a safe system of work with adequate supervision of their employees. Employers may find themselves in hot water if any of these requirements are not met, but just how far does that duty extend?

In a recent decision, the Supreme Court awarded millions of dollars in damages to a chef on account of her employer failing to discharge their duty to keep her reasonably safe. The worker alleged that while she was performing her duties, she attempted to carry a bucket into the kitchen area. While in the process, she spilled water from the bucket onto the kitchen floor, slipped in the water and fell and injured herself. She also argued that the kitchen floor was always dangerous and prone to being extremely slippery when wet.

The employers argued that it had always operated with due care and attention towards its employees, and that it did not breach its standard of care to ensure that their employees were protected from risks which were reasonably to be expected. As proof of this, the employer further argued that the floor of the kitchen area was composed of ceramic tiles with smooth non-skid surfaces and that no polish or other sheen products were permitted to be applied to the kitchen floor. Instructions were also provided to the staff, including the injured employee, to ensure that a dry surface was to be maintained in the kitchen area, and that all persons using the kitchen were to wear proper footwear that would not render their movements in the kitchen potentially unsafe. Additionally, the employer argued that they satisfied the other criteria of providing competent and adequate staff to enforce these guidelines and directives.

Interestingly enough, the court found that in order for the employer to honour this aspect of its duty to its employees, it is not enough for the employer to provide a safe system of work. There must also be adequate supervision. The court accepted that general warnings were continuously given by the employee’s superior and concluded that issuing even continuous guidelines and directives, with no supervision, cannot be considered a safe system of work. In cases such as these, where the possibility of slipping and falling is a central issue, the court has found that in order to discharge the duty to supervise, an employer may need to check the shoes being worn by their employees to ensure that they are appropriate for the circumstances of their job. In this case, despite the employee being the source of her own injuries, the court concluded that the employer failed to provide a safe system of work and was liable for the injuries sustained by the worker in question.

The law, however, through a mechanism referred to as contributory negligence, places a check and balance on the employer’s duty by requiring employees to take reasonable care for their own safety while on the job. If an employee fails to do so, and it is determined that that failure played a role in the injuries sustained on the job, even if the employer is found to have failed in its own duty, an employer will benefit from what is effectively a discount in the amount they are required to pay. The more the employee is deemed to have contributed to their own injuries, the greater the discount would be. In this particular case, even though the court accepted that the water was spilled accidentally, the employee should have appreciated the risk in continuing to walk while the floor was wet. Especially since she was aware the ceramic tiles were slippery when wet. The employer therefore benefited from sharing the responsibility for the incident and only had to pay a discounted amount of compensation.

Employees should understand that they ought to exercise their job functions with reasonable care for their own safety, but also in the unfortunate event of an injury on the job, ought to know that they may still be entitled to compensation from their employers. Employers on the other hand, who arguably have the greater duty, need to ensure that they put the necessary safeguards in place to reasonably protect even their negligent employees’ safety lest, as the colloquial saying goes, if they slip, they slide.

Jovan Bowes is an Associate at Myers, Fletcher and Gordon. He may be contacted at jovan.bowes@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.