On 19 December 2018, the Latrobe Valley Magistrates’ Court sentenced a 72 year old employer to prison for breach of her duties to provide a safe workplace under the Victorian Occupational Health & Safety Act 2004 (OHS Act).
The employer, Maria Jackson was a sole trader and the owner of Maria’s Recycling Emporium, a second-hand goods and recycling business in South Gippsland, Victoria. She had run the business for 40 years.
On 18 February 2017, Ms Jackson was involved in an incident, which resulted in the death of a 52 year old worker, Mr Robbie Blake. Ms Jackson was operating a forklift. She had never held a high-risk licence as required under the Occupational Health & Safety Regulations 2017 (Vic). According to media reports, Ms Jackson was recovering from a stroke.
Ms Jackson manoeuvred the forklift on uneven ground to raise an unsecured 1.8 metre high, scrap metal bin approximately three metres above the ground. The worker was standing inside the bin. According to WorkSafe Victoria:
“the bin was also in very poor condition with holes and corrosion in various locations. The forklift tynes were not spread as wide as they could be and were not central on the mast of the forklift. The task was also being carried out on uneven ground with a slight incline.”
The worker fell from the bin to the ground. The bin itself fell off the forklift. The worker was killed, when the corner of the bin hit his head.
Pleading and Sentence
Ms Jackson pleaded guilty to the following two charges under the OHS Act:
- failing to provide a safe system of work (section 24); and
- recklessly engaging in conduct that placed another person in the workplace in danger of serious injury (section 32).
The Latrobe Valley Magistrates’ Court convicted and sentenced Ms Jackson to a fine of $10,000 (for the section 24 offence) and six months’ imprisonment (for the section 32 offence). The court also ordered Ms Jackson to pay WorkSafe’s legal costs in the sum of $7,336.
Ms Jackson had initially lodged an appeal against the sentence. The maximum penalty for a breach of section 32 of the OHS Act is five years’ imprisonment. On appeal, a court can reduce, uphold or increase the original sentence. However, WorkSafe reported that on 29 January 2019 Ms Jackson had withdrawn her appeal. Accordingly, the six months’ jail sentence stands!
Significance for Employers
The case is significant for two reasons.
First, section 32 of the OHS Act (and equivalent provisions of other work health and safety legislation in Australia) is rarely used.
Second, prior to Ms Jackson receiving her sentence, no other individual prosecuted and convicted under section 32 of the OHS Act in Victoria had ever served a custodial sentence. In 2011 there were two prosecutions under this section that came very close:
- A construction worker was sentenced to a four months’ intensive corrections order, having pleaded guilty to shooting a nail from a nail gun into a co-worker’s eye. The employer was not charged with any offence.
- A supervisor was sentenced to 20 months’ jail suspended for three years for a workplace fatality, where a 21 year old was directed to perform a dangerous manoeuvre in a defective truck.
This decision is a major turning point for anybody legally responsible for safety in Victoria, whether an employer, a director or an employee. This stringent penalty, imposed against a business owner (despite being elderly and unwell), is part of a significant judicial trend across Australia of supporting severe sentences sought by the regulator. For example:
- In March 2018, the Supreme Court of Queensland sentenced an electrical contractor and director to seven years’ imprisonment for manslaughter and perjury, after a 20 year old worker died from electrocution, while under the contractor’s supervision.
- In February 2019, following the death of a 62 year old roofer, a roofing company director in Queensland was sentenced to one year’s imprisonment. This was the first reckless conduct charge under the Work Health and Safety Act to be contested at trial. The prison term was accompanied by a $1 million fine.
The trend is not about to stop!
Prior to the 2018 Victorian State election, the Premier promised to introduce a ‘workplace manslaughter’ provision with a maximum fine of $16 million, and a jail sentence of up to 20 years, consistent with the maximum prison term for manslaughter under Victorian criminal law. If this commitment becomes law, WorkSafe will be empowered to seek jail terms that will make Ms Jackson’s sentence look insignificant.
WorkSafe, like other regulators across Australia, is more willing than ever to use its statutory powers to the fullest extent possible to drive home a key message; employers must take workplace safety seriously!
What should you do? More than ever an employer must identify and manage risk, and involve its workforce in this exercise. And importantly, an employer must document all of these steps. The aim is that a workplace must have a real commitment to creating a culture of safety.
An employer, director or employee who can demonstrate these steps have been taken will have a much stronger prospect of defending a prosecution. Or, more ideally still, will never be prosecuted!
If you would like advice or assistance with any of the above issues, please contact a member of our Workplace Relations team.