The state government’s vigorous pursuit of workplace safety breaches has suffered a set back after the Supreme Court overturned last year’s biggest conviction.
Bayswater company Resource Recovery Solutions has successfully appealed against its conviction on two charges under the Occupational Health and Safety Act but has been found guilty of a lesser charge.
The case concerned a migrant worker whose arm was amputated in 2016 after he tried to clear a blockage in a waste sorting machine.
In a ruling handed down last July, magistrate Lynette Dias found the company guilty of gross negligence for failing to provide a safe working environment and failing to comply with an improvement notice that called for the installation of safety guards on the waste sorting machine.
This was the first time an entity had been found guilty of gross negligence, the most serious offence possible under the OHS Act.
The company was fined $330,000 – the largest fine ever imposed under the OHS Act to that point in time – and ordered to pay costs of $234,000.
Supreme Court judge Jennifer Smith has set aside both convictions and ordered that a retrial should not occur.
Instead, she found the company guilty of failing to provide a safe working environment and causing serious harm to a person, but not with gross negligence.
The new conviction carries a lesser, level 3 penalty, which will be handed down this week.
Justice Smith’s ruling, handed down on Friday, casts doubt on the government’s plan to prosecute RRS director Sam Mangione with gross negligence.
His charge carries a maximum penalty of a $250,000 fine and two years’ imprisonment.
The penalties for OHS breaches were substantially increased in 2018 and are set to increase again next year when new legislation is scheduled to take effect.
Justice Smith accepted three out of nine grounds for appeal lodged by RRS, which was represented by Barry Nilsson Lawyers.
Most notably, she found that magistrate Dias caused a miscarriage of justice by her failure to “confine the evidence relied upon in making her finding”.
Justice Smith said RRS needed to have actual knowledge that its actions, or lack thereof, was likely to cause death or serious harm.
This knowledge, she added, must relate to a specific contravention, which must be included in the prosecution’s “specified particulars of knowledge”.
Justice Smith said that, contrary to this principle, magistrate Dias made several findings that were not raised in the particulars of knowledge.
For instance, magistrate Dias found that Mr Mangione and his two plant operators – Mr Di Cicco and Mr Clarke - knew that RRS did not have a formal and documented safe working procedure.
She found that Mr Clarke was aware of the minimal induction he provided to new workers and made assumptions in relation to the training provided by their labour hire company.
Magistrate Dias also found that Mr Clarke knew he was not supervising the sorters clearing blockages.
“However, these findings were not issues raised in the particulars of knowledge (that the contravention would be likely to cause death or serious harm),” Justice Smith found.
For example, it was not “particularised” that not having a formal and documented safe working procedure for the removal of blockages would be likely to cause death or serious harm.
Reinforcing this point, Justice Smith said these findings “were squarely outside the bounds of the case put by the prosecution”.
“This miscarriage was not an inconsequential error,” she added.
“It was a substantial miscarriage of justice.”
Justice Smith also set aside the conviction of RRS for failing to comply with the improvement notice, which called on RRS to ensure that all dangerous moving parts were adequately guarded.
She found the notice was not valid because the WorkSafe WA inspector who issued the notice did not provide sufficient reasons.
“The statement made by the inspector in the notice that it would be practicable to install adequate guarding of the items of plant referred to in the notice is a bare assertion by the inspector that he had formed an opinion about practicability, but the grounds for that opinion are not revealed,” she said.
Therefore, Justice Smith found, the reasonableness of that opinion could not be ascertained.
Counsel for WorkSafe argued that the improvement notice could, nonetheless, achieve “substantial compliance” where the recipient was able to understand the contravention alleged.
This alternative argument was also rejected.
“This is because a contravention of the OSH regulations could not have arisen if adequate guarding of the items of plant specified in the notice was not practicable,” she said.
“Consequently, the obligation to state those reasonable grounds for the opinion is obligatory.”
Expanding on this point, Justice Smith said “the statement of reasonable grounds in an improvement notice need not be overly descriptive, but must be sufficient to reveal the basis of the requisite opinion”.
“How much detail an inspector must reveal of his or her opinion would depend upon the circumstances of the particular contravention that is the subject of the notice in question.”
Justice Smith said it would be inappropriate to order a new trial on the gross negligence charges.
“This is because if the prosecution were afforded an opportunity to amend its particulars, the appellant would be highly likely to have to face a trial of the charge on an entirely different basis,” she concluded.
The company has been cleared of the “gross negligence” (level 4 penalty) charge and has instead been found guilty of failing to provide and maintain a safe working environment and, by that failure, causing serious harm to a person, which carries the level 3 penalty. The court will re-sentence RRS later this week.
A government spokesperson said the State Solicitors’ Office was currently considering an appeal against the decision.
