Worker's jail sentence a safety lesson for employers: lawyer

A recent Queensland case, in which a worker - and not his employer - was convicted over a mining fatality, has highlighted the role a robust safety management system plays not only in reducing incidents, but protecting companies from prosecution, a workplace relations lawyer says.

Sparke Helmore partner Matthew Smith told OHS Alert that while he was not directly involved in the case, it appeared the worker had defied instructions - going "off on a frolic of his own" - in the lead up to the incident.

"[This was] a situation in which someone was trained, and disregarded his training," Smith said.

The employer was not charged because "there was an appropriate safety and health management system in place, and the workers who were involved in the incident had been adequately trained in that system - they knew what the systems were".

In January 2008 the worker was driving a Volvo loader with a basket-attachment at BHP Billiton's underground Cannington mine, when a colleague was crushed between the basket and the rear of another vehicle, sustaining fatal chest and abdomen injuries.

An investigation found the worker failed to appropriately operate and apply the loader's brakes, and he was charged with breaching s36(2)(b) of the Queensland Mining and Quarrying Safety and Health Act 1999.

In recent Townsville Magistrates Court proceedings, he was convicted and sentenced to eight months' jail (wholly suspended for 15 months), and ordered to pay more than $13,000 in court and investigation costs. (The decision is not available online.)

Three key messages

According to Smith, the case sends three "key" messages to employers:

1. Ensure you have a robust health and safety management system, regardless of your industry.

"It needs to be documented and it needs to be followed through, so the reality of what you do matches what's contained in the documents";

2. Ensure employees are trained in and understand that system.

"You're going to need to be able to demonstrate that. If you can do that and something goes wrong, you're in a defensible position. It also minimises the possibility of things going wrong"; and

3. Take swift action when employees do the wrong thing.

"If they breach the safety system, don't hesitate to take severe action against them. In other words, consider discipline, consider termination. Courts view [such breaches] very seriously - I think employers should too."

Smith noted that Queensland is the only Australian jurisdiction in which people have been sentenced to jail for safety breaches, with the case at hand being the third time.

"Queensland courts, particularly rural Queensland courts, are willing to impose terms of imprisonment," he said.