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When a night out has unexpected consequences

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By Kaye Griffiths, Senior Associate, MST Lawyers

Recently George Colombaris’ Kew Hellenic Restaurant was at the centre of media reports of guests becoming ill after dining at the well-known restaurant.  The reported cause was an employee who was unwell and the consequential spread of germs.

The outbreak was investigated by the Department of Health and the Local Council.  It is their role to investigate and prosecute where there are complaints about food sold to customers which is unsafe, not suitable to eat or is mislabelled.  At this stage, there have been no reports of any prosecutions.

The Hellenic Republic incident is a timely warning to all food industry operators that they should never become complacent about food handling including ensuring staff suffering from contagious virus’ do not handle food, food labelling and compliance with their food safety plans.

Local Councils can inspect food premises at any time and an operator’s, food handling  techniques or labelling is found to be in breach of the regulations the operator can find itself the subject of a criminal prosecution.  In Victoria such prosecutions usually occur in the Magistrates’ Court for a breach of the Food Act (and similar provisions in other Australian States and Territories). 

The law imposes an obligation on the food seller to sell food that is safe for human consumption, irrespective of the source of contamination.  Offences under the Food Act are “strict liability” offences meaning that it is not a defence to the offence to say that you did not intend to sell unsafe food.

Such prosecutions may not only include a corporate entity but the director of the corporate entity which, if a conviction follows, can have a serious impact on not only the business but the individual director. 

To minimise the risk of prosecution, or if prosecuted, the size of the penalty all food operators should have:

  1. A food safety plan;
  2. Checks and balances in place to ensure compliance with the food safety plan;
  3. Systems to ensure that the issue will not occur again;
  4. A process of reasonable precautions and due diligence to prevent the commission of the offence by you or an employee;
  5. A culture whereby management takes responsibility for the implementation of the food safety plan and the instilling of this to all employees.

As of July 2010, details of offences committed under the Food Act in Victoria where a person or corporation has been convicted after that date are publicly available on the Department of Health website. 

Further, usually a conviction is dealt with in open court meaning that the business and those running the business may be the subject of adverse media reporting.

If any incidents occur or there is any suggestion by the  Department of Health and the Local Council that they are investigating a complaint it is important to obtain legal adviceEnsuring that evidence is obtained in a timely manner, defences considered and the risk of conviction managed is essential.

The lawyers in our Dispute Resolution and Litigation team have substantial experience advising those in the food industry and providing an effective strategy to deal with such circumstances.

For further information regarding the Food Act or other Dispute Resolution and Litigation matters, please contact our Dispute Resolution and Litigation team by email litigation@mst.com.au or by telephone +61 3 8540 0200.