Dennis Jones Engineering Pty Ltd (DJE) and its sole director, Dennis Jones, were recently fined $2,100,000 and $140,000 respectively in Victoria’s County Court for breaches of the Occupational Health and Safety Act (OHS Act).
The penalty against DJE is more than double Victoria’s previous record safety fine for a single offence. Notably, the defendants’ guilty pleas in the earliest stage of the litigation and other relevant circumstances, such as no criminal history, meant that DJE and Mr Jones received a significant sentencing discount. Without that discount those fines would have been substantially higher again.
DJE operated a machine shop containing plant that performs drilling, milling, threading, turning and the like. Byron Foley was a second-year apprentice employed by DJE, who, on the instructions and under the supervision of Mr Jones and another employee, was involved in threading a pipe using a lathe. The pipe being threaded was too long for the lathe, with a significant part of the pipe protruding from the rear of the lathe and that part not being supported using a “steady”. The use of a steady in those circumstances was a simple, readily available measure to minimise any safety risk. Without use of the steady, as the pipe was being threaded, it bent and whipped, striking Mr Foley on the head with him sustaining significant injuries.
Upon inspection, experts engaged by WorkSafe Victoria found that “a workpiece whipping during rotation due to inadequate support was a well-known safety concern of which any qualified tradesperson would be aware” and were of the view that an effective cage or barrier should have been installed to prevent someone accessing the danger area around the spinning pipe.
DJE pleaded guilty to recklessly engaging in conduct that places or may place another person who is at the workplace in danger of serious injury (in breach of section 32 of the OHS Act).
Mr Jones’s liability under section 144 of the OHS Act arose in circumstances where he was an officer of DJE and DJE’s breach of section 21(1) and (2)(a) of the OHS Act was attributable to Mr Jones’ failure to take reasonable care. Section 21(1) of the OHS Act imposes a duty on employers to provide and maintain for its employees, a working environment that is, so far as is reasonably practicable, safe and without risks to health. Relevantly, section 21(2)(a) provides than an employer contravenes section 21 if it fails to provide or maintain systems of work that are, so far as is reasonably practicable, safe and without risks to health.
While Mr Jones was aware of the risk involved in the undertaking and of simple, readily available means to control the risk, he was nonetheless responsible for directing Mr Foley to undertake the task in the manner he did, placing him in danger of death or serious injury.
In deciding the appropriate penalties, the Court paid regard to the fact that in 2016 the Victorian parliament increased the maximum penalty for a section 32 offence such that it is now the second highest penalty under the OHS Act, just below the newly introduced offence of workplace manslaughter. This reflected the intention of the parliament, which was outlined in the Second Reading speech to the relevant bill:
“The offence of reckless endangerment requires a far greater degree of culpability than an offence against section 21, which requires an employer to provide and maintain a working environment that is safe and without risks to the health of their employees … Where a body corporate recklessly places a person in their workplace in danger of serious injury, it should be treated as the most serious offence under the Act.”
The Court emphasised that offences are ‘risk based’ rather than ‘outcome based’ and that the injuries suffered by Mr Foley are relevant to demonstrate the potentially catastrophic consequences of the identified risk manifesting, which will then be relevant to the objective gravity of the offending.
In applying those principles, the Court confirmed that section 32 offending is a ‘high culpability offence’ and an offender’s culpability is determined by considering their awareness in respect of:
- the degree of probability that the worker would be placed in danger of serious injury; and
- the nature of the probable danger thus foreseen.
Following those principles, the Court accepted that DJE’s offending was objectively very serious and that DJE’s culpability is very high.
While the Court noted that DJE is a small family-owned company which turns over little to no profit annually and that anything other than a modest fine would tip DJE into liquidation, the Court took the view that placing too much weight on the potential consequences of the sentence would not give appropriate weight to the objects of the OHS Act.
While they each received reduced fines as a result of pleading guilty, the Court indicated that without receiving the relevant sentencing discount the fines would have been $2,800,000 and $270,000 respectively. In addition to personally receiving a fine, Mr Jones was sentenced to a community corrections order to last for 5 years, which includes that he is required to perform 600 hours of unpaid community work over that period and may not leave Victoria without the permissions of Victorian Community Corrections.
What does this mean for you?
This case serves as an important reminder to employers, and for corporate employers, also their directors, that the successful prosecution of breaches of work health and safety laws can lead to the imposition of significant fines against both companies and individuals, with the latter also at risk of imprisonment for the most serious offences, or as an alternative, additional restrictions such as not being able to leave the State without permission.
While Victoria is the only Australian State to have not adopted the model Work Health and Safety laws, those model laws also provide for significant fines, with a continuing trend by the States to not only introduce the more serious offence of industrial manslaughter but also to increase the maximum fines which may be imposed for all work health and safety breaches.