August 2020

Industrial manslaughter charges

This article was published in the Hire and Rental News magazine August 2020 issue, page 60.

Industrial manslaughter charges, a $3 million dollar fine for the company and suspended prison sentences for directors will send a chill down the backs of businesses and boards.  While industrial manslaughter charges against businesses and directors are unusual, the outcome isn’t.  The case of R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 is another case of an employee being killed at work by a forklift and directors working in the business being blind to safety. 

What sets this case apart from other safety prosecutions is the complete lack of safe work systems and processes to address, in a meaningful way, the hazards and safety risks at work.  The risk of death from a forklift is obvious and well-known.  The Court found the lack of any safety systems simply remarkable; the absence of a traffic management plan was simply inexcusable.  It was reckless for the directors to not have a safe work system and to not foster a safe workplace culture.  As the Court found, “the inaction by the defendants was due to expedience for commercial gain or complacency, or both, the moral culpability of each is high”.

The defendant company was an auto wrecking business.  A worker on site was struck by a reversing forklift and died eight days later.  The deceased worker was “crushed” by the forklift.  The driver of the forklift was unlicensed and not looking when he reversed, only looking back when he hit the deceased worker.  The directors of the business, and individual defendants, were 23 and 25 years old respectively.  Their youth was no exemption from their statutory duties of due diligence under work health and safety legislation.  They worked in the business and as leaders owed important duties.  They were also not honest about how the incident occurred when first questioned.

In fact, the measures to ensure safety at the workplace were relatively simple.  The installation of signage, plastic bollards and marked exclusion zones on site, along with adequate supervision and a traffic management plan, would have gone a long way, a modest cost, to ensure workplace safety.  And a worker would be alive.

A safety culture starts at the top.  A safe workplace is driven from the top.  Directors and senior management, especially in dangerous and hazardous workplaces, need to be discussing and actively driving a safe workplace in board meetings, management meetings and when in the business.  The approach to safety needs to be systematic and thorough.  Businesses need to ensure hazards and risks from all work are identified and active steps taken to eliminate and control the risks.  The safe work methods established need to be developed and communicated to workers, in a consultative framework.  Safety needs to be supported with resources and knowledgeable and skilled staff.  Safety messages need to be communicated regularly, reinforced and enforced.  Never resting on one’s laurels, safety measures need to be systematically audited and reviewed. 

The Board and management need to ensure all these measures have occurred and are occurring by the provision of adequate support, diligent enquiry and reporting.  And if you are driving these steps to occur as a leader, then you can sleep peacefully at night.  If you cannot answer any questions on these matters, then time to act.

Author: James Mattson