Criminal charges cleared against an Officer for alleged WHS breaches

In a blog last year we wrote about the first charges to be laid against an ‘officer’ under the harmonised Work Health and Safety Act 2011 (WHS Act) in relation to a workplace incident that occurred in 2012.

In an important development, the charges against Mr al-Hasani as an ‘officer’ of Kenoss Contractors Pty Ltd, have now been dismissed, as the ACT Industrial Magistrate held that Mr al-Hasani did not have a sufficient level of control or influence to be an “officer” within the meaning of the legislation.

The case: a refresh

In R v Kenoss Contractors Pty Ltd [2014] criminal charges were brought against both the company Kenoss Contractors Pty Ltd (Kenoss) and Mr al-Hasani as an officer of the company in the ACT Industrial Court for serious safety breaches which led to the death of a truck driver using their dump site. The company went into liquidation but was nevertheless found guilty of the offences.

The incident that gave rise to the charges involved the fatal electrocution of a truck driver (not an employee of Kenoss) when the elevated trailer on the tip truck he was operating at a road resurfacing project dump site touched a live power line above. The area was under the control of Kenoss, and while their employees had been verbally alerted to the dangers, that appeared to be the extent of the control measures relating to what was a very serious hazard.

The prosecution alleged that verbal instructions were not adequate and that more tangible safety measures needed to be taken to counteract the risk. A series of basic safety breaches were alleged to have contributed to the worker’s death including that:

  • there were no warning signs or flags anywhere to alert workers to the presence of live power lines;
  • there was no spotter to help the worker dump the load safely; and
  • the power had not been turned off, something that can and should be done.

Even though the Industrial Magistrate considered that Mr al-Hasani had breached his safety duty of care as an employee, as he had only been charged in his capacity as an officer, she held that the prosecution had not proved that he had a large enough level of control or influence in the company for him to meet the definition of an ‘officer’ under the Corporations Act 2001 (Cth) (Corporations Act). On that basis she dismissed the charge against him.

What is required of an ‘officer’?

Under the WHS Act the term ‘officer’ can include directors, company secretaries and others who make, or participate in making, decisions that affect the whole, or a substantial part, of the company.

The Act requires officers to exercise due diligence to ensure that the organisation (or Person Conducting a Business or Undertaking, PCBU) meets its obligations under the WHS Act. The duty of due diligence specifically requires an officer to take reasonable steps to:

  • acquire and possess current knowledge of work health and safety matters;
  • gain an understanding of the nature of the operations and any hazards and risks the operations may include;
  • ensure that the PCBU has available resources and processes and uses them appropriately to minimise risks to health and safety;
  • ensure that the PCBU has processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely manner;
  • ensure that the PCBU has, and implements, processes for complying with any duty or obligation the PCBU is required to uphold; and
  • verify that those processes are implemented.

Failure to do so can attract a maximum penalty of $300,000, up to 5 years imprisonment, or both.

It is important to note that all workers are accountable under the WHS Act for their own health and safety and any actions that adversely affect others in the workplace, but the duty is far greater for officers, given their much higher capacity to make and keep workplaces safe.

The bottom line

Although the case has finally come to a close in favour of Mr al-Hasani, companies and senior operatives in a company must remain vigilant to their obligations under the WHS Act.

If convicted, Mr al-Hasani could have been fined $300,000 and left with a criminal record.

 

Employee who drunkenly abused bosses unfairly dismissed

The Fair Work Commission (the Commission) has found that an employee who sexually harassed colleagues and told his boss to ‘f—k’ off at the company Christmas party and subsequent partying, was unfairly sacked.

The Commission’s decision made findings on a number of significant issues which led to the eventual outcome of unfair dismissal. The full decision of the Commission can be accessed here.

The party and the hangover

Stephen Keenan was a team leader at a Leighton’s joint venture project. He attended Leighton’s Christmas function on 12 December 2014, at a venue away from the workplace, where free alcohol was provided to the joint venture staff, served by venue staff (they were not Leighton’s employees). After the function finished, Keenan and a number of other employees moved on to a nearby bar where they continued to party.

Over the next few days Keenan’s employer Leighton Boral Amey NSW Pty Ltd (Leighton) received a number of complaints against him from other employees. The allegations against Mr Keenan from witnesses included that at the Christmas party and at the subsequent party he engaged in:

  • inappropriate behaviour and language, including aggressive, intimidating and bullying behaviour towards the employee who had organised the function;
  • a number of instances of sexual harassment of co-workers, which took place at the Christmas function, then in the bar where some of the party-goers went after the Leighton’s function, and at a taxi stand after the post-party partying broke up; and
  • bullying.

Leighton conducted an internal investigation into Keenan’s behaviour at the function and the subsequent events, identifying alleged incidents of misconduct by Mr Keenan, namely bullying and sexual harassment.

Leighton consequently dismissed Mr Keenan, after first giving him an opportunity to respond to the allegations and to a penalty of dismissal.

Decision

The Vice President found that the dismissal was harsh, after he disregarded those allegations which occurred between Mr Keenan and other employees after the Christmas function. With the remaining allegations, he found dismissal to be grossly disproportionate to the misconduct, given that there were no lasting consequences  in the workplace, Mr Keenan’s good employment record, and similar behaviour by another co-worker who was not dismissed.

Significant Outcomes for Employers

One of the key findings was that Leighton’s, as the employer, was not vicariously liable for Mr Keenan’s harassment of other staff at any of the after-party events, as they were insufficiently related to work. And as they were not liable, therefore they were not able to point to any misbehaviour by Mr Keenan after he left the Christmas party, as being work-related misconduct.

While this appears to be at odds with an employer’s workplace health and safety/workers compensation responsibilities, this does bring a measure of comfort that there are limits to an employers’ responsibilities for staff after hours behaviour. The Vice President found:

“I do not consider that conduct which occurred at the upstairs bar [after the Christmas party] can be said to be in connection with Mr Keenan’s employment. The social interaction which occurred there was not in any sense organised, authorised, proposed or induced by [the employer]. Those who gathered there did so entirely of their own volition. It was in a public place. There was nothing in LBAJV’s Code of Conduct or relevant policies which suggested that they had any application to social activities of this nature.”

Not quite surprising was the Commission’s finding that where the function was connected to employment, such as the Christmas party, it was incumbent upon the employer to provide managerial supervision. Naturally this included the responsibility to take steps to ensure the responsible service of alcohol, and in particular that alcohol was not served to staff who appeared to be intoxicated and behaving badly.

Final Note

Before employers get too excited about the ramifications of what is considered the workplace, it must be remembered that under work health and safety laws, the employer is responsible for the safety of employees after a function to the extent that they can control it, so that letting intoxicated employees drive home after a work function would most likely breach their duty of care to their employees.

 

Redefining what is bullying ‘at work’

In another recent decision, the Fair Work Commission has confirmed a narrow definition of what constitutes bullying ‘at work’ when considering a claim under the anti-bullying provisions of the Fair Work Act 2009 (the Act).

The case

Three DP World Melbourne Limited (DP) employees applied to the Commission for an order to stop bullying against DP and the Maritime Union of Australia (MUA) alleging that they were the subject of repeated unreasonable behaviour by other employees at the company and MUA officials.

Under s 789FC of the Act the Commission can only make orders to stop ‘bullying’ when it is satisfied that the worker/s have been bullied ‘at work’.

The respondents, DP and MUA, applied to strike out a number of the applicants’ grounds for their application on the basis that they didn’t occur ‘at work’.

The applicants’ grounds included that:

  • offensive and insulting Facebook posts were made about the two applicants by MUA officials, members and DP World employees;
  • MUA failed to provide advice and representation to the applicants who were members of the Union;
  • DP and MUA employees and members made various threats against the applicants and warned others not to associate with them; and
  • some actions not at work may nevertheless provide relevant context and background to other alleged behaviour at work.

The findings

The Commission further refined how it determined whether the bullying behaviour occurred ‘at work’:

  • as a narrower concept than the previous interpretation of conduct that has a ‘substantial connection to work’;
  • covers circumstances in which the alleged bullying conduct occurs at a time when the worker is ‘performing work’, regardless of time of day or location;
  • is not limited to the confines of the physical workplace;
  • includes meal times and other breaks when the worker may not be performing actual work; and
  • extends to when the worker is participating in other activities authorised or permitted by the employer (i.e. accessing social media while performing work).

The Commission’s limitations on when actions occur in order to bring them within the anti-bullying jurisdiction, can be seen as confusing if not somewhat artificial. Situations where a bullying post on social media is made while the miscreant is not at work, would not give rise to a bullying claim unless the employee read the post while at work during the course of their work.

Also, while the worker doesn’t have to be ‘at work’ when any additional comments are posted, the worker making the claim to Commission will have to have accessed the post and the comments that constitute or further the bullying, while ‘at work’.

Good and bad news for employers

The Commission has acknowledged that the definition is not fully developed or perfectly operational in complex cases. It hopes that over time the definition and its application can develop on a case-by-case basis.

Even though it is confusing, any tightening of the application of anti-bullying orders and provisions by the Commission will be welcome news for employers, although generally most bullying cases taken to the Commission are either struck out or settled by mediation.

In reality however, bullying or harassment  between employees which occurs after hours, still has the capacity to affect the mental state (and productivity) of employees when they are in the workplace. To this end employers should strongly consider having a social media policy which establishes what is appropriate and inappropriate behaviour by employees in their after work lives which impacts on the workplace. The policy should also clearly outline that there will be disciplinary sanctions for inappropriate behaviour.

 

Significant changes to Queensland workers’ compensation scheme proposed

The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 (Bill) has been introduced in Parliament and it proposes a number of changes to Queensland’s workers’ compensation scheme. The Bill, if passed, will amend the Workers’ Compensation & Rehabilitation Act 2003 (Qld) (the Act). According to the Explanatory Notes, the Bill seeks to implement a number of policy proposals made by the State Government as part of its pre-election policy campaign.

If the Bill is passed, the most immediate impact that the changes will have on employers’ day to day operations will be that employers won’t be able to obtain a copy of a prospective employee’s workers compensation claims history as a part of their recruitment process.

Self-insured employers in Queensland are likely to experience some financial implications, as the threshold for all injuries on or after the date of the State election (31 January 2015) will be removed, with additional compensation being available to particular workers impacted by the operation of the common law threshold prior to 31 January.

Further information will be available once there is definitive news on the progress of the Bill.