For the first time, two employers in Australia have been sentenced to prison for breaching Australia’s WHS laws. Two recent cases involving deaths contributed to by employer negligence in the workplace illustrate the need to put safety at the fore of any business as a small business owner, and a Company Director, have both been held responsible, and convicted, for contributing to workplace deaths.
WorkSafe Victoria v Jackson
The owner of a second-hand goods and recycling business in southern Victoria, Ms Maria Jackson (Ms Jackson), was handed a 6 month prison sentence for causing the death of a worker in February 2017 due to reckless endangerment. The Latrobe Valley Magistrates Court heard that Ms Jackson was recovering from a stroke and did not hold a current forklift license when employee, Mr Robbie Blake (the Employee), fell three metres from a raised forklift Ms Jackson was operating.
The Employee, was cleaning scrap metal from a bin when Ms Jackson used a forklift to pick it up, causing the Employee to fall three metres to the ground when the bottom of the bin gave out, before being crushed by a load of steel poles.
WorkSafe Health and Safety Executive Director Julie Nielsen said Ms Jackson had shown an “…abhorrent disregard for the health and safety of people in her workplace”.
Ms Jackson pleaded guilty to breaching sections 24 and 32 of the Occupational Health and Safety Act 2004 (Vic) which pertain to ‘Duties of self-employed persons to other persons’ and ‘Duty not to recklessly endanger persons at workplaces’. Ms Jackson was also fined $10,000 and ordered to pay $7,336 in costs.
Workplace Health and Safety Queensland v Gary Lavin
In another recent decision in February this year, a Queensland District Court Judge sentenced Mr Gary Lavin (the Director) to one year of imprisonment for his involvement in the 2014 death of Mr Whareheepa Te Amo (the Worker). The Director’s company, Multi-Run Roofing Pty Ltd (the Company), was also convicted and fined $1 million.
This is the first conviction for a category 1 offence in Queensland for serious breaches where a duty holder recklessly endangers a person to risk of death or serious injury. The maximum penalties under this category are a $600,000 fine and/or 5 years imprisonment for Directors and a $3 million fine for companies.
The Company was engaged by Wimmers Soft Drinks to perform roofing works for their factory in 2014 in Coorey, Queensland. During the roofing work the Worker fell 6 metres from the factory roof to his death.
The Court heard that the Director had been motivated by money in his decision not to install edge protection on the roof. Wimmers Soft Drinks paid the Company to install it, however the Director chose to keep the money for the company rather than install the edge protection.
Judge Cash criticised the Director’s decision to jeopardise his worker’s safety in order to save money commenting: “You’ve shown a flagrant disregard for proper safety methods and were motivated by the desire to improve your and your company’s financial position.”
Importantly, the Court held that edge protection would have stopped the fall and the lack of it could have been easily addressed.
The Court held that the Director and Company had recklessly exposed its workers to the risk of death or serious injury in omitting to install roof protection, and that whilst the workers were competent and skilled, the risk was significant as the roof edge provided ‘a narrow margin for error’. A method was adopted by the roofers (with the knowledge and supervision of the Company and the Director) where the rails of scissor lifts were used as a barrier alongside the roof edge, with the workers working near the edge to wear a safety harness. At the time of his fall, the Worker was not wearing a harness.
Despite pleading not guilty, the Court accepted that the Director was remorseful. None of the defendants had a record of any relevant breaches of work health and safety laws.
The jury determined that both the Director and Company were both guilty of engaging in reckless conduct. The court ruled that the Company be fined $1,000,000, to be paid within six months, with the Director sentenced to 12 months’ jail, to be suspended after four months.
If you would like to discuss any WHS concerns or potential issues that your company may have, please do not hesitate to contact Nick Stevens, Jane Murray or Angharad Owens-Strauss.
 WorkSafe Victoria v Jackson  LVMC 1068896
 Workplace Health and Safety Queensland v Gary Lavin  QDC