The following case is the first successful prosecution under section 31 of the Work Health Safety Act 2012 (SA) (WHS Act). It may be indicative of the regulator increasing its focus on prosecuting individuals for breaches of the WHS Act.
A construction site supervisor who took no steps to stop a fellow worker squirting a young apprentice with flammable liquid and setting him alight pleaded guilty to breaching the WHS Act. The charge in part complained that he took no steps to stop the conduct from occurring. A further complaint was that he took no steps to put the fire out.
In March 2017 an employee of Tad-mar Electrical Pty Ltd, Mr Chenoweth, squirted flammable liquid onto the boot and shirt of a 19-year-old apprentice, and ignited the flammable liquid. Fortunately, the apprentice was not seriously injured.
The South Australian Employment Tribunal heard that long standing site supervisor Mr Rowe was present during the incident and took no steps to stop the actions of Mr Chenoweth. Mr Rowe himself squirted more flammable liquid onto the apprentice's shirt whilst it was burning. That was a further breach of his obligations.
While the Tribunal accepted it was horseplay which went astray, Deputy President Magistrate Cole considered that the potential for a devastating outcome was real. The Tribunal noted the imbalance of power and authority made it harder for the apprentice to resist what he was subjected to.
Section 31 of the WHS Act provides that a person commits an offence if they have a health and safety duty and, without reasonable excuse, recklessly engages in conduct which exposes an individual (to whom that duty is owed) to a risk of death or serious injury or illness.
Mr Rowe pleaded guilty to a breach of section 31 of the WHS Act for reckless conduct which exposed the apprentice to a risk of death or serious injury.
The maximum penalty was five years imprisonment and a $300,000 fine. Mr Rowe was convicted and fined $12,000 by the Tribunal for his involvement (after a 40% reduction for an early guilty plea), plus prosecution costs, court costs and victims of crime levy. For the full decision, see Martyn Campbell v Jeffrey Rowe [2019] SAET 104.
Tad-Mar Electrical Pty Ltd and Mr Chenoweth have also been charged with offences under the WHS Act. Those cases are yet to be determined.
What does this mean for your organisation?
This case demonstrates that the Tribunal will take seriously the actions of those who simply 'look on' while unlawful conduct is occurring and if they participate in that conduct.
SafeWork SA Executive Director Martyn Campbell said he 'hopes this sentence serves as a warning to all people in leadership positions that SafeWork SA will enforce individual actions where leaders don't follow their statutory duty of care for workers in their charge'.
We encourage employers to speak frankly to employees about workplace conduct and, in particular, workplace pranks.
This case reinforces the need for comprehensive bullying policies and procedures, as well as training of staff in how to manage and report bullying behaviour.
Our team would be happy to provide tailored workplace bullying training to your organisation and to assist with reviewing your internal policies and procedures if necessary. Please feel free to contact us.