Wednesday, 6 February 2019

Do Not Pass Go: Increasing Likelihood of Jail Sentences For Negligent Employers Operating Unsafe Workplaces

Under work health and safety legislation in most Australian jurisdictions, employers who are convicted for serious breaches of their safety obligations can be fined, and individuals in cases of reckless endangerment (or industrial manslaughter in certain jurisdictions) can be sentenced to prison.

While it is not uncommon for the applicable regulator to seek the imposition of prison sentences for such negligent business owners, traditionally these sentences have been suspended. January 2019 apparently marks the first instance of an individual employer in Australia being sent to prison for a breach of their duties to maintain a safe workplace.

The Incident

The circumstances of the breach in the incident in question were extreme and reckless, with the company owner concerned driving a forklift unlicensed, carrying a bin full of scrap steel with one of her employees standing in it. The bottom of the bin gave way, dropping the employee and the steel, and tragically causing the employee fatal injuries.

The prosecution

The business owner was prosecuted by WorkSafe, and she plead guilty to breaches of the Occupational Health and Safety Act 2004, including the obligation not to recklessly endanger persons at workplaces. The owner was sentenced to 6 months’ imprisonment and was fined $10,000, plus $7,336 in costs.

What has changed in the Authority’s approach?

While the particular breach was extreme, the business owner’s sentence represents a watershed moment in WorkSafe’s approach to sentencing.

The Authority has indicated that it is willing to pursue the maximum penalties available for breaches of health and safety laws, particularly serious cases such as this one. It is likely we will see similar trends in other Australian jurisdictions.

What should employers do?

This development should not be of concern to employers who take safety seriously. Ultimately, ensuring measures are in place to provide and maintain a safe working environment is not just about legal compliance (and avoiding imprisonment) – it is about protecting employees so that they can perform work productively.

However, the Authority has made clear its approach to enforcement of safety obligations, and employers who are subject to prosecution should be prepared that the relevant regulator will approach sentencing with rigour.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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