Court holds owner 'personally liable' for failure to maintain a safe workplace
In a recent ruling at the Melbourne County Court, Dennis Jones Engineering Pty Ltd, along with its sole director Dennis Jones, faced the court for their violations under the Occupational Health and Safety Act (OHS).
The gravity of their actions was reflected in the record-breaking fine of $2.1 million imposed on the company for recklessly endangering the lives of their workers.
Dennis Jones did not escape liability, as he was personally convicted and fined. The charge against him arose from a failure to provide or maintain safe work systems, a duty neglected by him in his capacity as an officer of the company.
The OHS Act requires people involved in work and workplaces, as far as is reasonably practicable:
- To secure the health, safety and welfare of employees and other persons at work; and
- To eliminate, at the source, or reduce, risks to the health, safety or welfare of employees and other persons at work.
The tragic workplace incident
The incident happened in October 2021 when Jones directed Byron Foley, a 20-year-old apprentice, to utilize a plastic sleeve to stabilize lengths of steel pipe being threaded on a lathe at the company's Morwell workshop.
A lathe is a piece of plant used in machining. It rotates a workpiece, such as a bar or pipe, about an axis to perform various operations with tools applied to the workpiece to create an object with symmetry about that axis.
Tragically, the apprentice, positioned at the end of a pipe extending nearly 1.5 meters from the lathe's rear spindle, was struck when the pipe bent and whipped.
According to records, when asked about the incident and how it had occurred, Jones said that he was not sure “whether the plastic sleeve being held by Foley had slipped from the end of the pipe, or whether there was a bit of a wobble in the pipe which caused Foley to let go.”
Jones said that “it appeared Foley turned and tripped and hit his head, perhaps on a bin a few meters to the side of where he had been standing, and that he ended up in a position where he was lying flat on his back.”
This resulted in the apprentice being placed in an induced coma, requiring airlifting to the hospital and undergoing surgery for severe head injuries.
Employer’s workplace safety obligations
A subsequent investigation by WorkSafe revealed that Jones should have been aware of the risks involved. It was deemed reasonably practicable for him to ensure that protective covers were affixed to the lathe to prevent protruding pipes from being threaded.
Alternatively, a fixed steady could have been employed to support such pipes, coupled with the implementation of an exclusion zone to restrict access to the dangerous area near the pipe.
The court found that Foley sustained a traumatic brain injury in the incident and continues to experience speech aphasia and seizures. His hand also doesn’t work, and he has walking and balance issues.
He has had a skull reconstruction with a titanium plate and testified that “he finds daily life difficult and how much has been taken from him.”
“I watch my friends every single day live the life I want to be living. My life now revolves around my medical issues, constant appointments, fear and stress,” Foley told the court.
Company owner found ‘personally responsible’
The court said that the “breach of duty was directly attributable to the employer’s failure to take reasonable care.”
It said the employer was “aware of the risk involved in the undertaking and of the simple, readily available means to control the risk.”
The court added that the company’s sole director was “personally responsible for directing Foley in undertaking the task in the manner he did, placing him in danger of death or serious injury.”
However, it also noted the owner’s personal actions, early plea of guilty, and cooperation with WorkSafe’s investigation as “genuine demonstrations of remorse.”
Thus, the court imposed a penalty of $2.1 million against the company. The owner was convicted of the charges against him for workplace safety breach and fined $140,000. Jones was further sentenced to a Community Corrections Order, which will last for five years from the court’s direction.