Have you ever found yourself second guessing a decision that you have made, or had a close call at a workplace where the afterthought was along the lines of “geez, we were lucky with that one, that could have been a bad one?”
In October of 2017, industrial manslaughter provisions were introduced into the WHS Act 2011, Electrical Safety Act 2002, and the Safety in Recreational Activities Act 2011. These provisions make it an offence for a Person Conducting a Business or Undertaking (PCBU), or a Senior Officer, to negligently cause death of a worker. The offence applies if:
- A worker dies, or is injured and later dies, in the course of carrying out work for the business or undertaking (including during a work break); and
- The PCBU’s, or Senior Officer’s, conduct causes the death of the worker (i.e. the action or inaction of the PCBU, or Senior Officer, substantially contributes to the death); and
- The PCBU, or Senior Officer, is negligent about causing the death of the worker (i.e. the person’s action or inaction departs so far from the standard of care required)
How do you think you would cope with being convicted of industrial manslaughter? and what about being responsible for the death of a friend, colleague or co-worker at your place of work? The maximum sentence for an individual is 20 years imprisonment.
This is the reality for Mr Jeffrey Owen the owner operator of Owens Electric Motor Rewinds a company that specialises in repairs of electric motors and generators.
On the 3rd of July 2019 Mr Owen was operating a forklift to move a generator. The generator was positioned on the tines of the forklift and during transit the generator had become unstable and fell from the tines and crushed his friend causing severe injuries that resulted in death.
In August of 2020 industrial manslaughter charges were laid upon Mr Owen for his involvement in the incident. On the 25th of March 2022 Jeffrey Owen was found guilty and convicted of industrial manslaughter. Mr Owen was sentenced to a five-year jail term, of the maximum 20-year sentence available.
During the trial it was noted that:
- Mr Owen was operating the forklift without the required high-risk licence;
- the forklift’s lifting capacity was exceeded and was not working within the Safe Working Limit as the generator was too heavy; and
- at the time of the incident a co-worker was observed to be standing on the counterweight of the forklift to assist in a more even weight distribution.
The prosecution submitted that while it was not expected that a small business would have a sophisticated safety management system, it was pointed out there was a complete absence of any such system in place.
The court also heard that safe, alternative, low-cost methods of unloading the generator were available. After approximately four days of the trial the jury took just four hours to find Mr Owens guilty.
Some of the key learnings that can be taken away from this tragic event.
- That duties under legislation are not to be underestimated and simply cannot be taken lightly.
- That the charges thus far have been brought forward against individuals who are more involved in the everyday running of the business rather than those company Directors who may be removed from the everyday occurrences (However, this doesn’t mean that they couldn’t be found guilty). The outcome serves as a stark reminder that regardless of the size of your business the WHS laws are applicable at all levels.
- All businesses regardless of size should ensure they have a safe system of work for the tasks that are being performed. A Safety Management System is one way to ensure that this takes place.
- Claiming a lack of resources will not prevent or save you from prosecution.
Big Yellow Safety is your trusted Safety Consultant on the Gold Coast who are experts in limiting your business’s risk. If you are unsure if your current Work Health and Safety Management System is up to scratch, or if you need some help to assess your exposure to a similar situation, speak to the team at Big Yellow Safety.