Call free on
1300 575 394
Get a quote

Safety procedures not enforced – $180K fine stands

An employer's appeal against a $180K fine has failed after a court ruled it had not ensured safety procedures and checks were followed.
Return to previous page
Safety procedures not enforced – $180K fine stands

Safety procedures not enforced – $180K fine stands

19 March 2019

An employer failed in its appeal against a fine of $180,000 imposed because a labour hire employee had her hand crushed when it became caught in a press machine.

The employer had a procedure including the use of machine guards and checking processes that should have prevented this injury, but was held liable because the procedure and checks were not followed.

The employer argued that the amount of the fine did not take into account employees’ failure to follow procedures, but was unsuccessful and the fine stood.

Facts of case

Morris McMahon & Company was a metal packaging manufacturer. A labour hire worker received serious crush injuries when her right hand became caught in the press machine, requiring amputation of one finger and partial amputation of two others.

Two guards were fitted to the machine, but weren’t installed at the time because another employee had overlooked doing it when resetting the machine.

The NSW District Court ruled that the employer’s duty of care required a system of checks that ensured that guards were installed and fully operational before the machine could be used. The employer had two independent guard systems and a card system that required setters to test the safety features of each machine before a shift commenced. It also trained employees to perform a “challenge test” each time to check all safety measures on the presses.

The problem, however, was that the employer did not supervise these procedures sufficiently well to prevent an employee from inadvertently overlooking them, for example not reinstalling the guards after maintenance work (which procedure required the installer to complete a safety check, but did not require him/her to record having done it). The setter’s supervisor was absent on the day the worker was injured and the injured employee had not been trained in part of the checking procedure.

Although the checks required took only a few seconds, the risk of injury if they were overlooked was high and readily foreseeable.

The court found that because the procedures were deficient, negligence on the part of any employee did not reduce the gravity of the offence. It set a fine of $240,000 but reduced it by 25 per cent to $180,000 after a guilty plea. There had been previous similar incidents at the same employer.

Grounds of appeal

The employer argued that the fine was excessive because the offence was a low-range one, but the NSW Court of Criminal Appeal found that it was a mid-range offence, and the fine was well below the possible maximum of $500,000.

The employer also argued that the errors were made by employees who failed to follow the procedures in place, and therefore the employer’s culpability was reduced.

It also claimed mitigating circumstances, including that it took remedial action afterwards to prevent any recurrence.

Decision

The Court of Appeal found no errors in the original decision. After comparing the circumstances of the case to previous decisions, it declined to reduce the fine. While the employer was aware of its obligations to ensure employee safety and had developed procedures, it had failed to ensure that all employees followed them. Therefore it had not done everything that was reasonably practicable to ensure employee safety. A written checklist would have overcome the problem of a supervisor not being present to ensure that a setter’s oversight would be noticed and corrected.

Given its past record, the court rejected the employer’s claim of mitigating circumstances.

How Workplace Assured can help

It is insufficient just to have a set of safety checking procedures in place. An employer must also take steps to ensure they are always followed by employees and that, even in circumstances such as the absence of a supervisor or fully trained/qualified person, either an alternative precautionary procedure is available or the system is “idiot-proof”. Even if an employee’s negligence is the main cause of an incident, a court or tribunal may still determine that an employer was culpable if there are any loopholes in the procedures.

For guidance on WHS policies and procedures, including a diagnosis of what your business needs to avoid safety pitfalls, contact our WHS Specialist, Larry Forsyth for an obligation free initial assessment.



Read the judgment

Morris McMahon & Company Pty Limited v SafeWork NSW [2019] NSWCCA 36, 27 February 2019


 

Sign up to get the latest news and updates

Like what you’re hearing?

With plans available from just $58 per week, now is an excellent time to join Workplace Assured.

PROTECTION
REASSURANCE
GUIDANCE