Director faces prison for workplace death

In a stark demonstration of the consequences of failing to properly meet work health and safety standards, a company director in Western Australia has become the first person to serve a prison sentence in consequence of a workplace death.

Whilst terms of imprisonment are not new to work health and safety laws – being introduced in Western Australia in 2004 – it is still quite quite rare for a person to spend time behind bars for breaching safety laws.

With the new offence of industrial manslaughter rising to prominence in some states and territories, the ruling serves as a timely reminder of work health and safety obligations.

Disregard for risk results in highest ever penalties

The sentence against the company director, handed down by the Esperance Magistrates Court on 24 May 2021, resulted from the death of a young worker and the serious injury of another.

The two workers, who were engaged by a small shed-building company, fell from the roof of an equipment shed when strong winds caused a roof sheet to lift resulting in the workers falling approximately nine metres. One, a young father of three, suffered fatal injuries, while the other suffered multiple fractures to his pelvis, wrist, hip and ribs.

Both the company and the director pleaded guilty to a charge of “gross negligence”, with the court taking account of the fact that the risk of strong winds was known in the area and to the director, and that there were no measures at all in place to safeguard against falls.

As well as being sentenced to serve eight months in prison with a further 18 months suspended, the director was personally fined $2,250 and the company itself was fined $605,000.

These penalties are notable in that not only is it the first time that an individual has been sentenced to serve time behind bars for a safety breach in Western Australia, it is also the highest fine imposed on a business for safety breaches in that state.

Prison was always an option

While the rhetoric around industrial manslaughter laws may lead the casual observer to believe that prison for serious safety breaches is something new, the harsh reality – as demonstrated by this case – is that imprisonment has long been a possibility for those responsible for safety breaches.

Indeed, imprisonment for safety breaches arising out of “gross negligence” were inserted in the Western Australian legislation in 2004, and have been a feature of the model work health and safety laws since they were adopted by most States and Territories in 2011.

However, where these penalties were enlivened, it was still incredibly rare for individuals to serve time behind bars, with most terms of imprisonment being wholly suspended.

Industrial manslaughter versus existing laws

With the above in mind, it may beg the question why industrial manslaughter laws have come to prominence at all.

The difference between the existing work health and safety offences and industrial manslaughter, where it exists, is often subtle but profound, and can typically be distilled down to three points:

• industrial manslaughter applies to actual death or injury, rather than just the risk of it;
• industrial manslaughter carries much more significant penalties; and
• industrial manslaughter is usually easier to prove.

The existing offences under work health and safety laws apply both where a person has died or suffered serious injury and where they may not have suffered any injury at all, but merely been exposed to the risk of it.

As a matter of public policy, it is undesirable for both actual death and the risk of death to be treated the same way, so industrial manslaughter seeks to create a more severe offence where the risk of death has actually materialised.

Further, the existing offences typically carry much lower penalties than industrial manslaughter, usually in the forms of fines in the hundreds of thousands and up to five years imprisonment. In contrast, industrial manslaughter exposes the defendant to more significant fines, typically in the millions, and maximum terms of imprisonment between n15 to 20 years, depending on the State or Territory.

Finally, the existing offences usually require “recklessness” or “gross negligence” – that is, the person knew of the risks and failed to address them. Conversely, industrial manslaughter typically requires only that the person was “negligent”, which can include failing to properly consider the possibility of risk in the first place.

A changing regulatory paradigm

In June 2020 a small business based in Brisbane became the first company convicted of industrial manslaughter in Australia, and ordered to pay a fine of $3 million even though the judge acknowledged that the business could not afford to pay it.

However, the directors in that case avoided a conviction for industrial manslaughter, instead pleading guilty to the pre-existing safety breach offence and receiving suspended sentences of 10 months each.

While the recent Western Australian case was prosecuted under the existing laws rather than industrial manslaughter, the penalty imposed and the attitude of the regulator in pursuing it highlights that businesses need to consider safety as more than a merely operational matter.

These cases and others like them, particularly in those States and Territories with industrial manslaughter laws, indicate that regulators are increasingly more willing to pursue individual officers for safety breaches, and to pursue imprisonment and significant fines as a penalty where these breaches are severe.

Officers – directors and other senior managers – must exercise due diligence to be familiar with and proactively manage the risks inherent in their business, otherwise face severe penalties both against the business and themselves personally.

The message the employers is clear – safety must be central to every operational activity, and where safety fails, you will be held to account.

For a confidential discussion about your work health and safety obligations at law, call NRA Legal on 1800 572 679.