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A company director was sentenced to two years and two months’ imprisonment last week following breaches of Western Australia’s occupational safety and health (OSH) duty provisions relating to his involvement in a 2020 workplace fatality.

The director’s total and immediate terms of imprisonment are an Australian record for work health and safety (WHS) offences, and the total penalty of $605,000 against the company is the highest that has ever been imposed in Western Australia.

The decision by the Esperance Magistrates’ Court is consistent with the trends we have been seeing in recent years of increased WHS penalties and more focus on individual liability. For example, the six month imprisonment of director, Maria Jackson, for breaches of the Occupational Health and Safety Act 2004 (Vic) in 2017, and the 12 month imprisonment of director, Gary Lavin, for breaches of the Work Health and Safety Act 2011 (Qld) in 2014 (although Gary Lavin successfully appealed his conviction and  a retrial was ordered which has not yet been heard).  See related article here.

The facts

In March 2020, two employees of MT Sheds (WA) Pty Ltd (the Accused Company), were tasked with installing roof sheets on a new farm shed in Western Australia (the Task). During the installation of the roof sheets, a strong wind lifted a roof sheet from a pack the employees were working on, causing both of them to fall from the roof (the Incident). The first employee fell nine metres from the roof’s apex, sustaining fatal injuries. The second fell seven metres from the gutter line, suffering serious injuries to his ribs, pelvis, hip and wrist.

Following the Incident, WorkSafe (WA) issued a total of seven charges against the Accused Company and its director, Mark Thomas Withers (Mr Withers), for serious contraventions of the Occupational Safety and Health Act 1984 (WA) (the Act) and the Occupational Safety and Health Regulations 1996 (WA) (the Regulations). The contraventions included delegation of the Task to unlicensed employees; neither employee had the requisite high-risk work licence to perform the Task and the deceased employee did not hold a construction induction training certificate required to undertake construction work.

The Accused Company pleaded guilty to breaching its duties as an employer in circumstances of gross negligence and was ultimately fined a total penalty of $605,000: $550,000 for gross negligence and an additional $55,000 for breaches of the Regulations.

Mr Withers also pleaded guilty to permitting the Accused Company’s gross negligence offence either by consent or neglect and was sentenced to two years and two months’ imprisonment—making him the first person to be jailed under Western Australia’s safety laws. Mr Withers has been ordered to serve eight months of his sentence immediately. The remaining 18 months has been suspended for 12 months. Mr Withers was also fined $2,250 for operating a crane without the required licence.

Significance for businesses and individuals

This is the third non-suspended custodial sentence for a breach of WHS duties in Australia. The custodial sentence imposed on Mr Withers and the record fine for Western Australia imposed on the Accused Company confirms the trend we are seeing towards the imposition of increasingly significant penalties upon individuals and businesses who fail to comply with their WHS duties. There is also a continuing focus on individual liability following serious workplace incidents, including company directors.

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