Properly Pursued Prescribed Policies Prevent Penitentiary Predicament

Dangers in the workplace can sometimes lead to serious accidents. This firm handles many personal injury cases where employees are injured at work. In some accidents the injury is minor and in others the injury seriously affects the employee’s life.

Something we rarely see (thankfully) is where an employeeis killed. If this happens, it is not only the employee’s family and friends that are affected, but the Company Officers’ as well. In Fry v Keating [2013] WASCA 109, the Western Australian Court of Appeal reminded Company Officers that ignorance of the laws is no excuse and serious fines and jail time is a possibility.

Background

An employee of D&G Hoists and Cranes Pty Ltd (the Company) was killed when a pack of crane components slipped in the course of being lifted and moved at his place of work and hit him in the head.

It was found in evidence that there were two ways of lifting the crane components. One was ‘approved’ as it was a safer lift than the other; however the other method had been used in the past. The management had expressed to the yard supervisor to only use the safer method however, his duties contained administrative tasks and he was not always able to give full attention to the yard.

On the date of the accident, senior riggers had used the unsafe method and the load fell and killed an employee.

Decision

Despite the directors:
a) Not knowing that the unsafe method was being used;
b) Believing that the yard supervisor was enforcing the use of the safe method; and
c) Correcting employees if they observed unsafe practices:

1. The unsafe method had nevertheless been in use at the workplace on a regular basis for some time prior to the accident; and
2. Some employees prior to the accident believed that the unsafe method was to be used for moving the parts. The decision also noted that a Director accepted that employees sometimes ‘do things in a way that they shouldn’t’. It was foreseeable then, that an employee might use a method other than the safe method and expose employees needlessly to hazards.

The Company was culpable because it had failed to have the appropriate slinging method in place and enforced at the time of the accident resulting in the dangerous method being used. The directors were also culpable as:

1. There was not a consistent induction process in place and the deceased had not been the subject of an induction;
2. At the time of the accident, a written safety procedure was being formulated but had not been put in place;
3. There was no consistent system in place whereby dogmen/riggers who were new to the business were shown how to correctly sling a pack of crane components;
4. There was a breakdown of the supervision system in the workplace, in that the yard supervisor had reported to his superior at the time that the
unsafe method was being used and nothing was ultimately done about it;
5. The Operations Manager had no training in occupational health and safety and had no experience in dogging or rigging and would not have known whether the slinging was being done properly;
6. There was no formal safety officer employed. D&G Cranes’ failure to ensure the health and safety of the employee who was killed was attributable to
the neglect of each of the directors and of the company.

‘Neglect’ concerns not just what the officer knows at the time of the breach but also what the officer ought to have known. Even an argument that one director was overseas at the time of the accident was no excuse as it was immaterial that he was absent from the State at the time of the accident as his neglect was failing to enforce a safe system of work.

Although this event occurred in Western Australia, the same types of laws apply in Queensland. That is:

• Employers and Officers must take reasonable measures to ensure the health and safety of workers and other persons at risk from the work carried out as part of the business;
• Taking reasonable steps means that businesses should ensure that appropriate processes are implemented and appropriate resources are utilised to eliminate risks;
• If reasonable measures are not taken, Directors and Officers can be personally liable without an incident or accident even occurring;
• Individual Directors and Officers can be liable for up to $600,000.00 in penalties and/or five (5) years imprisonment; and
• Corporations can be liable for up to $3m in penalties. Each of the two directors was fined $45,000.00 and the Company a further $90,000.00.

The company later went into liquidation.