INSIGHT

WA director jailed for workplace fatality

By Rachel Skevington, Veronica Siow
Employment & Safety

In brief 4 min read

A small business owner in Western Australia has become the first individual sentenced to imprisonment under the state's work health and safety (WHS) laws following the death of one worker and serious injury of another. The company has also been fined a total of $605,000 for gross negligence and for breaching safety regulations.

Key takeaways

  • This decision demonstrates that WHS regulators are willing to prosecute both companies and individuals for failures under the WHS legislation.
  • It reinforces the need for awareness of, and compliance with, officer due diligence obligations.
  • It acts as a timely reminder for officers in WA that now is the time to ensure appropriate systems and processes are in place to satisfy due diligence obligations ahead of them taking effect under the Work Health and Safety Act 2020.

Background

In March 2020, two workers were installing metal roof sheets on a farm shed. A strong wind gust lifted a sheet near where they were working, causing them to fall. The first worker fell approximately nine metres and was sadly killed. The second worker fell approximately seven metres, resulting in multiple fractures to his pelvis, hip, wrist and ribs.

There were no safety control measures in place at the workplace and neither worker held the necessary high-risk work licences. The deceased worker also did not hold a required white card necessary to perform the construction work he was performing.

Decision

The director and company both pleaded guilty to gross negligence with the director pleading guilty to allowing the company's gross negligence to occur with his consent or through his neglect for the purposes of s55 of the Occupational Health and Safety Act 1984 (WA) (the Act).

The Esperance Magistrates Court has sentenced the director, who owned the shed building company, to eight months' imprisonment (plus an additional 18 months suspended for 12 months).

WorkSafe WA Commissioner Darren Kavanagh noted that there was a 'knowing acceptance of danger',  the director was 'well aware of the risks' and the director 'completely failed in every sense to provide a safe workplace for his employees, and as a consequence a young man lost his life and a family lost a loved one'.

The director is the first person to be jailed for breaching existing WA work health and safety laws and received the longest term of imprisonment in Australia for a WHS offence.

The director was also fined $2,250 for operating a crane without a licence.

The company was fined $550,000 for gross negligence under the Act, plus $55,000 for breaching safety regulations. This is the highest fine to be issued in WA for breaches of WHS laws.

The company is the second employer in WA to be sentenced for gross negligence.

Mr Kavanagh affirmed that 'the State Government is committed to improving workplace safety laws, including ensuring that significant penalties are available to provide incentive to comply with these laws and ensure that community expectations are met'.

Actions you can take now

  • Review the systems and processes in place that ensure officers are meeting due diligence obligations by taking reasonable steps to:
    • acquire up-to-date knowledge of WHS matters;
    • understand the nature of the operations and the hazards and risks associated with them;
    • ensure there are appropriate resources and processes to eliminate or minimise those hazards and risks; and
    • verify that these resources and processes in place are effective.