Inspector Doug Rolland v Coles Supermarkets Australia Pty Ltd

Judgment 1This is a prosecution brought by Inspector Doug Rolland of the WorkCover Authority of New South Wales against Coles Supermarkets Australia Pty Ltd ("Coles") (the defendant) under the provisions of s 8(1) of the Occupational Health and Safety Act 2000 (the Act). 2It is alleged the defendant breached s 8(1) of the Act in that it failed to: Ensure the health, safety and welfare at work of all its employees, and in particular, Gloria Schulz and Nelleka Van Stratum, contrary to section 8(1) of the Act. In particular: (a) The employees of the defendant were put at risk of injury by falling a distance of approximately 2.27 metres through a suspended plasterboard ceiling located in the roof access room of the premises to the concrete ramp below when they accessed the suspended plasterboard ceiling to store or retrieve goods and/or materials. ... (b) The defendant failed to carry out a risk assessment in respect of the weight bearing load of the suspended plasterboard ceiling in the roof access room to consider and identify the hazards associated with storing or retrieving goods and/or materials from the suspended plasterboard ceiling and the means by which the risk could be eliminated; (c) The defendant failed to provide a safe system of work in relation to the storage and retrieval of goods and/or materials from the roof access room in that it allowed its employees to access the suspended plasterboard ceiling to store or retrieve goods and/or materials when the suspended plasterboard ceiling did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees; (d) The defendant failed to ensure its employees were instructed not to store and/or retrieve goods and/or materials from the suspended plasterboard ceiling roof in the roof access room which suspended plasterboard ceiling did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees; (e) The defendant failed to ban or prohibit employees from storing and/or retrieving goods and/or materials from the suspended plasterboard ceiling in the roof access room, which suspended plasterboard ceiling, did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees. In particular, the defendant failed to give effect to and enforce its own procedure contained in the document entitled "Alert! Accessing Coolroom Roofs and Ceiling Spaces" issued on 7 June 2007, that its employees should not access or enter the void above a suspended ceiling; (f) The defendant failed to restrict employees accessing the suspended plasterboard ceiling in the roof access room by ensuring access was restricted by a physical barrier at all time and/or instructing employees not to access the area verbally, in writing or by the use of signage. 3The defendant pleads guilty to the charge. An agreed statement of facts has been tendered which relevantly reads as follows: 1.At all material times, the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (the Act) and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter. 2.At all material times, Coles Supermarkets Pty Ltd (ACN 004 189 708) was a corporation whose registered address is situated at Wesfarmers House, 11 th Level, 40 The Esplanade, Perth, in the State of Western Australia, ("defendant"). 3.At all material times, the defendant was a corporation that undertook the business of retail grocery sales. 4.At all material times, the defendant was an employer at Coles Manly Peninsula store, Coles Supermarkets Australia Pty Limited, corner Wentworth Street and Darley Road, Manly in the State of New South Wales ("store"). 5.The defendant employed Gloria Schulz as a Range in Charge in the Dry Goods Department. Ms Schulz had been employed by the defendant since August 2004, and had been working in the Range in Charge position for approximately one year at the date of the incident, 29 August 2007 6.Ms Schulz's duties included the implementation of new layouts and the display of deleted items, which were stock that had been reduced to clear. 7.The defendant employed Nelleka Van Stratum as a Service Assistant in the Customer Service Department. Ms Van Stratum had been employed by the defendant since December 2005. 8.Ms Van Stratum's duties were to serve customers, supervise the opening of the service area and supervise the service area until the Service Manager arrived. Roof access room 9.The defendant's store had a roof access room in the Customer Service Department next to the service counter. There was a white door that led to the roof access room. (Refer to photograph numbers 6 and 7 in Annexure "A") 10.The roof access room consisted of two sections. The majority of the room is a 'trafficable area' comprised of compressed form cement, supported by steel floor framing. This section of the roof access room is load bearing, and is the section on which the ladder to an upper mezzanine level was installed. The smaller section of the roof access room contained a plasterboard floor, known as the suspended plasterboard ceiling. At all times the trafficable area and the suspended plasterboard ceiling were separated by a fixed steel guardrail. 11.The trafficable area of the roof access room was used by the defendant to store items including drinks, dockets, receipt rolls, register bags and promotional items. 12.The roof access room measured approximately 2.2 metres long x 2.05 metres wide x 3.56 metres high. The trafficable area of the roof access room measured approximately 2.2 metres long x 1.06 metres wide x 3.56 metres high. 13.The steel guardrail was approximately 1.06 metres from and parallel to the left hand side wall. The guardrail was welded onto an access ladder. The access ladder led to a mezzanine level above. (Refer to photograph number 9 in Annexure "A") 14.Prior to the incident, the suspended plasterboard ceiling on the right side of the guardrail was above a concrete walkway ramp leading to the car park. (Refer to photograph number 9 in Annexure "A") 15.The distance from the suspended plasterboard ceiling to the floor level of the walkway ramp below measured approximately 2.27 metres. 16.Three red shopping baskets, containing Shrek promotion products, were sitting on top of the suspended plasterboard ceiling and against the right hand side wall, on the date of the incident. (Refer to photograph numbers 9 and 10 in Annexure "A") Above the suspended plasterboard ceiling was a sign that was white in appearance which read 'DONT STORE ANY STOCK ON CEILING Thank you'. The incident 17.On 29 August 2007, Ms Van Stratum states she saw that Ms Schulz was deleting Shrek stock and "informed her" of the existence of the baskets containing Shrek promotional products as she "thought it was the right thing to do". Ms Schulz said that Ms Van Stratum directed her to retrieve the baskets containing Shrek promotional products, asking her to take them and reduce them and clear them out. 18.Ms Schulz asked Ms Van Stratum where the Shrek stock was. Ms Van Stratum got the key and unlocked the door to the roof access room. Ms Schulz and Ms Van Stratum then entered the roof access room. Ms Van Stratum pointed to where the Shrek promotional items were located, on the suspended plasterboard ceiling in the roof access room. 19.Ms Schulz could not reach the baskets containing the Shrek stock so she climbed onto and over the guardrail onto the suspended plasterboard ceiling in order to retrieve the Shrek items. Ms Schulz noted that there were no signs on the railing to indicate not to go over. 20.The suspended plasterboard ceiling collapsed under the weight of Ms Schulz and she fell through the suspended plasterboard ceiling onto the concrete car park ramp approximately 2.27 metres below. 21.Ms Schulz suffered injuries including a head laceration of 5cm requiring 4 stitches, whiplash to the neck, 12cm bruise on her left buttock, bruised tailbone and was admitted to hospital overnight. Ms Schulz was unfit for work for 4 weeks, was on restricted duties from September 2007, and returned to her pre-injury duties, with some restrictions, in January 2008. Ms Schulz returned to full pre-injury duties in March 2008. System of work prior to the incident 22.The defendant had an Occupational Health and Safety (OH&S) Management System in place prior to the incident on 29 August 2007. The OH&S Management System, known as the Safety CARE Health and Safety Management S ystem, included sections on site induction, indicating OH&S responsibilities, OH&S training, consultation process, and is published on the intranet 23.The storage of stock in the trafficable area of the roof access room had been common practice at the store since September 2005. 24.The defendant had not undertaken a risk assessment to identify the hazards associated with storing or retrieving goods and/or materials from the suspended plasterboard ceiling and the means by which the hazards could be eliminated, prior to the incident. 25.The defendant had not undertaken a risk assessment in relation to the capacity of the suspended plasterboard ceiling to bear any weight. 26.The manufacturer of the suspended plasterboard ceiling, Lafarge Plasterboard advised WorkCover in writing on 15 October 2007 that "the Australian plasterboard manufacturers agree that plasterboard installed in a horizontal plane is designed to carry its own weight plus when required limited additional loading of thermal/acoustic insulation materials only." 27.The defendant did not have a safe system of work in relation to accessing the suspended plasterboard ceiling to store or retrieve stock when the suspended plasterboard ceiling did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees. The defendant did not have a written procedure in relation to the, storage and retrieval of stock from the suspended plasterboard ceiling prior to the incident. Whilst the roof access room was kept locked, the defendant's employees could access the roof access room if they did so with the assistance of a member of the Store Management Team or the Service Desk Manager, who had access to the Duty Manager's key, as was the defendant's practice. As Ms Van Stratum was supervising the service area at the time of the incident, it was she who had access to the Duty Manager's key, which was kept at the Service Desk. 28.Prior to the incident, several of the defendant's employees, including Ms Schultz and Ms Van Stratum, were not aware that the suspended plasterboard ceiling in the roof access room should not bear any weight and should not be stepped on. Despite this, Ms Schultz and Ms Van Stratum were able to access the key to the roof access room and store and retrieve stock from the suspended plasterboard ceiling. 29.The defendant did not adequately instruct its employees not to store and/or retrieve goods and/or materials from the suspended plasterboard ceiling in the roof access room when the suspended plasterboard ceiling did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees. On 7 June 2007, the defendant issued a Hazard Alert nationally to all stores in relation to 'Accessing Coolroom Roofs and Ceiling Spaces'. The Hazard Alert listed the actions to be taken by the store managers, which included to ensure team members never entered the void above a suspended ceiling, to assess all areas that were being used inappropriately for above ground storage (e.g areas above cool rooms, offices, ceiling spaces etc) and where inappropriate areas are identified, to advise all team members not to access the inappropriate areas or use them as storage areas. On 8 June 2007, Kelly Bishop confirmed that the Hazard Alert had been actioned. (Refer to Annexure "G") 30.However, Ms Schulz and Ms Van Stratum were not aware of this Hazard Alert and it was not explained to them. It is apparent from the circumstances of this incident that the defendant failed to ensure the Hazard Alert issued was complied with. 31.The employees who were aware of the suspended plasterboard ceiling, including Ann Cecilia Lassenius, Dry Goods Manager and Chris Gillett, Customer Service Manager, did not take any action to warn the defendant's employees about the risk associated with storing and retrieving stock from the suspended plasterboard ceiling in the roof access room. 32.The defendant did not provide adequate supervision to its employees in relation to the access, storage and retrieval of stock from the suspended plasterboard ceiling. Ms Lassenius who was Ms Schultz's supervisor, was not present at the store on the day of the incident. System of work after the incident 33.WorkCover issued Prohibition Notice No. 150793 on 29 August 2007 to 'immediately cease work in the area open penetration located in the' roof access room, and to 'develop, implement and maintain a safe system of work to access stock items or perform work tasks in the area of open penetration located in the' roof access room. 34.The defendant no longer stores stock in the roof access room and has informed in writing all staff not to store any items in the roof access room. The roof access room continues to be locked and the only people with access to the key continue to be Store Management. The defendant erected a plywood laminate wall behind and against the guardrail that prevents any access or storage to the suspended plasterboard ceiling at all. There is a sign on the timber plywood reading "UNDER NO CIRCUMSTANCES IS ANY STOCK TO BE PLACED HERE. THIS AREA IS TO BE ACCESSED BY AUTHORISED PERSONNEL ONLY." 35.The Hazard Alert issued on 7 June 2007 was reissued on 12 September 2007. The Hazard Alert was distributed to all staff at the store and signed and dated as being read.