Jail sentence and record fine against reckless employer sets benchmark for WHS prosecutions

In the first charge of reckless conduct to be successfully tried under the harmonised work health and safety legislation, a director of a Queensland roofing company has been sentenced to 12 months imprisonment for his contribution to the fatality of a 62-year-old worker.

Charges against the director were upheld in a majority verdict by the jury, after hearing that the director had been motivated by money in his decision not to take reasonably practicable safety measures.

This decision represents a significant development in the Court’s approach to penalties and supports a recent trend in the focus on individual liability following serious workplace incidents.

What happened?

Multi-Run Roofing Pty Ltd (Multi-Run) was engaged by Wimmers Soft Drinks Pty Ltd and Lavin Constructions Pty Ltd to carry out roofing works on large sheds at the Wimmers factory in 2014.

In order to perform these works, Multi-Run engaged five new workers, including Mr Te Amo who four days later tragically fell from a height of around six meters to his death.

Following an investigation by Workplace Health and Safety Queensland (WHSQ), it was identified that there was no fall protection installed on or near the edge of the shed where Mr Te Amo was working. Instead, workers adopted their own approach to safety which entailed using a safety harness and scissor lifts as barriers to the edge.

At trial, evidence was heard from workers, the Queensland Police Service and WHSQ, which corroborated Multi-Run’s failure to implement adequate risk controls without reasonable excuse. Specifically, other roofers described discussions with the director where he had disclosed a reluctance to install edge protection due to the high expense.

However, it was understood that the cost of installing safety rails was approximately $5,000 and had already been factored into the $300,000 contract price. On that basis, edge protection could have been easily addressed, which would have prevented the fall.

Despite Mr Te Amo’s failure to employ the system of scissor lifts and safety harnesses on the day of fatality, the jury found that Multi-Run and its director had been reckless as to a significant risk of death or serious injury and permitted a very narrow margin for error.

On that basis, the Queensland District Court handed down a fine of $1 million against Multi-Run and a 12 month jail sentence against its sole director, to be suspended after four months.

What is the significance of this case for businesses?

Until now, the likelihood of a prison sentence being issued against a director or senior officer has been very low. Often, the Court is reluctant to issue severe penalties in circumstances where the individual has entered a guilty plea, demonstrated genuine remorse and argued for a lower sentence in light of their unblemished criminal record.

This case is significant as it represents a departure from that position and opens the floor for stronger penalties to be handed down in other jurisdictions cross the country.

How can NRA Legal help?

There is more incentive than ever before for employers to examine their work health and safety systems.

NRA Legal can offer assistance by:

1. reviewing and revising existing risk management and incident response procedures; and
2. developing bespoke training programs for employees on their work health and safety responsibilities.