• Community Based ‘Prison Term’ Imposed For OHS Breach by A Worker
  • September 14, 2011
  • Law Firm: Norton Rose Canada LLP - Montreal Office
  • Introduction

    Health and safety offences by employees are in the spotlight this week.

    In a recent decision a Victorian Magistrate convicted and sentenced a 21 year old construction worker to a four month intensive corrections order after he pleaded guilty to recklessly endangering another worker at his workplace. The worker was convicted of a breach of section 32 of the Occupational Health and Safety Act 2004 (OHS Act).

    The incident occurred in 2009 when a construction worker, while working on the roof at a housing estate in Melbourne’s west fired several nails at an apprentice, hitting and causing blindness to his left eye.

    On 8 September, two employees were convicted and fined $1,500 each for ‘planking’ at work. One of the employees lay across the top of a canopy, while the other lay across the elevated tines of a forklift several metres above the floor. In each case, there was a significant risk of serious injury or death from a fall and the behaviour represented a failure to take reasonable care for their own health and safety.

    The offence of reckless endangerment

    Employees have a duty under the OHS Act to take reasonable care for the health and safety of themselves and others who may be affected by their acts or omissions at a workplace. Quite clearly, the worker who fired the nail-gun failed to take reasonable care for the health and safety of the apprentice.

    An offence of reckless endangerment is a more serious offence than a mere failure to take reasonable care. It is committed when a person recklessly engages in conduct that places another person at a workplace in danger of serious injury. Recklessness may be found where the person engages in the conduct in disregard of an awareness that serious injury is likely to result if they do so.

    In this case, continually firing a nail gun at a person was likely to have resulted in serious injury, as in fact occurred.

    A term of imprisonment ordered to be served by intensive community correction

    A breach of section 32 is a serious offence and at the time of the offence could have attracted a maximum penalty of a fine of over $200,000 or imprisonment for up to five years, or both. 

    The Magistrate imposed on the defendant a sentence of four months imprisonment, but did not require him to serve that time in prison. The defendant instead must undertake intensive correction in the community, undertaking community work for a total of 12 hours per week for the period of four months. A breach of the requirements of that order could see the defendant complete his sentence in prison.

    Although there have been a relatively small number of prosecutions of employees, the case involving the nail-gun is the closest a person has come in Victoria to having to serve a term of imprisonment for breaching the OHS Act.

    While perhaps not representing reckless endangerment, the ‘planking’ cases should be considered to be serious given the potential for death or serious injury. The relatively low fines imposed recognised the financial positions of the workers (including the loss of their jobs) and their clear remorse for what they acknowledged was ‘clear stupidity’.

    These decisions highlight the importance of employees recognising and complying with their duties under OHS laws. It should serve as a strong warning against engaging in what is commonly known as ‘horse-play’.

    An equivalent duty to take reasonable care will be placed on a worker under the Work Health and Safety Act (the model Act), which will include complying with reasonable instructions, policies and procedures of the business or undertaking for whom they are working. The circumstances of the case of misconduct with the nail-gun would represent a Category 1 offence and attract a penalty of $300,000 for an individual or five years imprisonment, or both.

    A caution for workers and employers

    As WorkSafe Victoria has pointed out in its media comments, this type of conduct is unfortunately not rare, but workers usually avoid injury. These cases show the consequences for a worker who behaves with a disregard for safety, particularly where the conduct is deliberate rather than simply careless. While ‘horse-play’ is one form of misconduct by a worker, bullying and harassment is another form that is very prominent.

    It should be remembered, however, that employers owe a duty of care owed to their employees that includes providing instructions, training and supervision necessary to ensure that work is carried out safely and without risks to health. A failure to instruct employees on the risks associated with misuse of plant, and to provide appropriate supervision, may contribute to misconduct by the employees and represent a breach of the OHS Act by the employer.

    An employer who fails to identify or take action to prevent unsafe practices, particularly where the employer is aware that they are occurring, may be in breach of the OHS Act and possibly guilty of reckless endangerment. 

    Courts in Victoria have in recent times imposed significant fines on employers who have been charged with recklessly endangering workers. In 2010, the Magistrates’ Court in two separate cases convicted two employers for recklessly endangering its employees and imposed fines of $750,000 and $280,000 respectively. One of those cases related to the failure of an employer to properly enforce an instruction to employees not to bypass guarding on machinery, knowing that was occurring. 

    Under the model Act, these offences being Category 1 offences (reckless endangerment) will attract a maximum penalty of $3 million for a business or undertaking.
    An employer can avoid being found guilty of an offence following misconduct by an employee, if they take appropriate action to prevent or deter it occurring. In a case in mid 2010 while three employees were convicted of offences and fined for spraying brake cleaner onto an apprentice and setting it alight, causing serious burns, the employer was not prosecuted as it had earlier met with them and spelt out that bullying and pranks would not be tolerated.

    Steps an employer should take

    Employers should accordingly:

    1. Have policies in place for the proper use of plant and identifying risks associated with misuse; and policies identifying proper workplace behaviour and prohibiting bullying and other forms of misconduct;
    2. Ensure that all workers are properly trained and instructed in those policies and procedures;
    3. Reinforce and support the policies through regular communication;
    4. Provide a reasonable level of supervision to enable misbehaviour to be identified;
    5. Respond with further training or instructions upon becoming aware that the policies or instructions are not being followed; and
    6. Take action, where appropriate, to counsel or discipline workers who misbehave.