Andrew Douglas
Principal, Douglas Workplace and Litigation Lawyers
Introduction
The increasing trend of prosecuting
individuals for OHS offences is not confined to the upper tiers of management.
Increasingly, Worksafe is turning its attention to supervisors and operations
managers in recognition of the fact that ineffective supervision plays a major
part in workplace accidents.
Liability
of Supervisors
The liability of supervisors ordinarily
arises by virtue of their duties as employees. The Occupational Health and Safety Act 2004 imposes liability on
employees:
- to take reasonable care for their own safety (section25(1)(a));
- to take reasonable care for the health and safety of
other persons (section 25(1)(b)), and - to co-operate with the employer with respect to action
taken to comply with the Act (section 25(1)(c)).
Further, an individual who exercises his or
her customary management function may be liable under section 26, which imposes
liability on a person who has, to any
extent, the management or control of a workplace.
Clearly, effective supervision of employees
in relation to workplace health and safety is critical to the implementation of
safety initiatives. Supervisors must receive appropriate training so that they
are able to play a role in the systematic management of OHS.
Liability of supervisors under OHS
legislation may arise due to a failure to adequately:
- Implement documented risk management systems and ensure
that employees comply with prescribed procedure; - Identify and assess hazards;
- Provide competent training and supervision
- Manage and control employees in part of a workplace
they manage and control
It must be born in mind that the potential
liability of the supervisor is not discharged simply because risks have been
assessed and a safe system of work implemented. Active supervision and training
is an ongoing and non delegable duty.
The approach of the law in this area is
well summarised in an English case which has been applied in Australian courts.
According to Lord Justice Denning in Smithwick v National Coal Board
(1950) 2 KB 335:
The occupier must realize that not everybody is
careful: many are hasty, careless or
inadvertent; some are unreasonable, or even disobedient. It may be unlikely
that they will act in such a way, but it is not only the likely but also the
unlikely accident against which the occupier must guard. He must guard against
all conduct which he can reasonably foresee. The limit of his responsibility is
only reached when the machinery is safe for all except the incalculable
individual against whom no reasonable foresight can provide – the individual
who does not merely do what is unlikely, but also what is unforeseeable, or, at
least, not to be foreseen by any ordinary man” ((1950) 2 KB 335 at 350).
This means that it is no defence to argue
that the employee did not comply with the officially sanctioned method of work,
although the fact that a safe system of work was formally adopted will clearly
be a relevant matter.
Examples
In Rodney Morrison v Gregory Alan Gardner
[2003] NSWIRComm 440, the Defendant was a mine Deputy who was responsible for
supervising a mining crew. During his shift, a roof collapsed, resulting in the
death of one of the miners. The Defendant was charged under the NSW equivalent
of section 25. The defendant had only found out five minutes before the end of
the last shift that he would be working as the production supervisor that day,
and had not been told by any member of the mining team of their observations
that the roof was in poor condition. Nevertheless, he was liable for allowing
the mining work to continue when the risk of roof collapse ought to have been
apparent.
In 2005, Worksafe
Victoria
prosecuted two supervisors under section 25 of the Act for failing to
adequately supervise. In that case, an employee was fatally injured when he
fell while removing asbestos from underneath a roof. One of the supervisors
pleaded guilty and was ordered by a County Court judge to enter into a 12-month
good behaviour bond. The other supervisor pleaded not guilty, but was convicted
in the County Court and given a $3,000 fine. In that case, the company, Dynamic
Industries Pty Ltd, was also prosecuted for failing to maintain a safe working
environment, and was fined $8,000 in the County Court.
Interestingly, there also appears to be a
trend in Canada
to prosecute individuals, such as supervisors and foremen, who fail to enforce
their companies’ safe work practices and procedures. In the recent Canadian case of R v Fantini a supervisor was charged
with one count of criminal negligence causing death, and eight charges under
the OHS Act after a trenching accident at a residential construction project
took the life of a 38 year old man. The accused, who was 68, eventually plead
guilty to three of the OHS charges and the criminal charge was withdrawn. He
was fined a total of $50,000. The charges to which pleaded guilty concerned a
failure to ensure that the excavation was properly shored or sloped and a
failure to ensure the worker wore protective head gear and foot wear.
A
Role for Supervisors in OHS
The potential liability of supervisors is
an inescapable fact. Accordingly, supervisors need to be engaged in OHS, and
need to lead in safety matters at crew level. Supervisors should be encouraged and trained
to respond to safety issues, and need to understand that protecting employees
from accident and injury forms a significant part of their daily
responsibilities. The importance of supervisors showing leadership in the area
means that OHS management systems should not be too centralised or
bureaucratic, but should be driven from the bottom, rather than top down.