Australia’s first industrial manslaughter conviction has been handed down since the new charge was legislated into the Work Health and Safety Act 2011 (QLD) (‘WHS Act’).
In May 2019, Barry Willis (‘Mr Willis’) was struck by a forklift (‘the Incident’) while working at Brisbane Auto Recycling Pty Limited (‘the Company’) as an independent contractor.
The incident occurred while Mr Willis was strapping tyres onto a tray while two forklifts were operating nearby. One of the forklifts, being operated by an unlicensed worker, reversed into Mr. Willis and crushed him against the tilt tray. Mr Willis was taken to hospital by ambulance and died from his injuries 8 days later.
Mr Willis’ daughter was able to obtain the CCTV footage of the Incident and after seeing the Incident, she pressed charges against the Company and its two owners.
The two directors of the Company, 25-year-old Asadullah Hussaini (‘Mr Hussaini’) and 23-year-old Mohammad Ali Jan Karimi (‘Mr Karimi’) pled guilty to causing the death of Mr Willis and being “negligent about causing the death,” hence contravening section 34C of the WHS Act.
Both Mr Hussaini and Mr Karimi were found to be uncooperative and deliberately deceptive in the aftermath of the incident. Mr Karimi misled Mr Willis’ daughter, telling her that the Incident occurred because Mr Willis failed to properly secure a car to the tray, causing the car to roll and hit him.
Mr Hussaini was found to have deliberately withheld important information about the Incident that may have aided Mr Willis’ treatment. District Court Judge Anthony Rafter heard Mr Hussaini told paramedics that the Incident involved a one metre fall, however, when Mr Hussaini became aware of the actual circumstances of the Incident, he did not reinform the paramedics or treating doctors. Furthermore, Mr Hussaini was found to have misled investigators about the identity of the forklift operator in an attempt to conceal the fact that the forklift operator in question was not licensed.
Judge Rafter found that the Company did not have any safety procedures in place despite the high-risk environment their workers were in, often working in close proximity to forklifts. Furthermore, the directors did not take appropriate steps to verify the qualifications of their employees. This is despite the fact that Mr Hussaini and Mr Karimi started their business in 2016, and therefore should have understood the risks and taken appropriate steps to ensure the safety of their staff. For these reasons, Mr Hussaini and Mr Karimi’s conduct was found to be reckless.
The maximum penalty for an offence of industrial manslaughter under the Act is $10 million for a PCBU and a maximum jail term of 20 years imprisonment.
The court took into account factors including that the company was behind in superannuation contributions and did not have a WorkCover policy, however it had no prior convictions. Ultimately the company was fined $3 million, and Mr Hussaini and Mr Karimi were sentenced to 10 months imprisonment for reckless conduct.
Judge Rafter SC said that the sentence imposed should make it clear to PCBUs that “a failure to comply with obligations under the WHS Act leading to workplace fatalities will result in severe penalties”.
The tragedy involving Mr Willis was likely entirely avoidable and is a lesson in what not to do when managing high risk workplaces.
This case constitutes the first conviction in Australia of its kind and paves the way for future convictions under the offence of industrial manslaughter. Currently, offences for industrial manslaughter exists in a number of jurisdictions including the ACT, Northern Territory, Queensland and Victoria. New South Wales has determined not to implement a separate offence at this stage. This case is an example of how an industrial manslaughter offence may be treated by the courts.
The directors, as officers of the company, recklessly failed to exercise their duty of due diligence to ensure that the company met its work health and safety obligations and in doing so exposed workers (including Mr Willis) to a risk of death.
As part of the management of work health and safety, it is important that companies establish both safe systems of work and an incident response plan. In this case, neither was present.
Hence, it is critical for employers to implement adequate safety procedures and to properly verify the qualifications of all their workers in order to avoid serious injury or death to workers, as well as heavy fines or potential jail sentences. For any employer seeking advice or clarification on their workplace safety procedures, please do not hesitate to contact Nick Stevens, Peter Hindeleh, Daphne Klianis or Josh Hoggett.