Work safety regulatory incidents: worker error and employer culpability

Where there is suspected worker error associated with a major work safety incident^[1], it is usual for the employer to question the implications of the worker error for its own culpability for the incident under work health and safety (WHS) legislation. This is especially so when faced with having to respond to a work safety regulator’s investigation into the incident.

In reality, implications of worker error depend not simply on an understanding of the circumstances of the incident, but also an assessment of other relevant matters such as the employer’s relevant safety compliance position including an assessment of what is reasonably practicable, and the worker’s role and conduct relative to the safety risk. Nevertheless, there are some broad scenarios, considered below, that are indicative of the relationship between worker error and employer culpability.

Where worker error has exposed the worker to a health and safety risk

WHS harmonised legislation impose a primary duty on PCBUs (employers) to ensure the health and safety of its workers. At its core, this duty requires employers to take a proactive, structured and systematic approach to management of health and safety risks.  The duty extends to requiring employers to plan for human error of workers, variously characterised in authorities to include carelessness, inadvertence, inattention, haste, foolish disregard of personal safety, through to deliberate non-compliance with safe systems of work. The expectation is that such potential worker error is picked up in risk assessments and effectively managed by the employer via dedicated control measures (e.g. work design, safe work procedures and training). This extensive duty poses a substantial barrier against faulting a careless etc. worker exposed to a health and safety risk so as to deny employer responsibility under its primary duty, ordinarily unless it could be said that the health and safety risk associated with the careless etc. conduct was not reasonably foreseeable or otherwise it was not reasonably practicable to manage such risk.

Where worker error has contributed to or caused a health and safety risk

Worker duty

Under WHS harmonised legislation, workers have their own health and safety duty – which includes to take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons. Where worker’s error is found to have breached this duty, this could lead to personal liability for the worker (i.e. an offence) under WHS harmonised legislation, as the recent decision in SafeWork NSW v O’Sullivan^[2] demonstrates. 

O’Sullivan was employed as yard supervisor/forklift truck operator. He was prosecuted for breaching his worker duty, specifically, to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons. O’Sullivan stepped off a forklift to undertake some work, and the forklift rolled backwards down a slope, fatally injuring a driver loading his truck. His failures included not applying the park brake, lowering the tynes on the forklift and not placing a chock behind the forklift rear wheels, prior to leaving the forklift unattended.  O’Sullivan pleaded guilty to the offence based on failing to comply with his worker duty, and in May this year, he was sentenced by the court to pay a fine of $7,500.

Scenarios

Appreciating that each incident will turn on its own facts, in turn, informing the approach of the work safety regulator (and ultimately that of a court), set out below are some general observations to keep in mind where suspected worker error is involved.

First, not every worker error will amount to a breach (or prosecuted by the regulator as a breach) of the worker duty under WHS harmonised legislation, even if considered to be broadly a cause of the safety incident. Ordinarily, the focus of the work safety regulator when investigating a major safety incident is on the employer’s relevant safety compliance, and whether the employer has effectively managed the safety risk underlying the incident in question^[3]. Typically, where the work safety regulator seeks to effectively distinguish worker conduct (error) from the extensive employer primary duty, by way of prosecuting worker error as a breach of worker duty, the worker conduct is outside acceptable employment standards or operational requirements especially in circumstances where the worker in question has relevant supervisory or managerial responsibility.

Secondly, simply because a worker is found to have breached their duty, does not mean that the employer cannot also be found to have breached its primary duty (and also have committed an offence) in respect of the same incident. There are multiple duty holders under WHS harmonised legislation, each capable of being found to have breached their respective duty in relation to the one incident. So, where there are also employer failings in its safety compliance in that they failed to effectively control a safety risk resulting in an individual being exposed to the safety risk in question^[4], there is a reasonable likelihood of the employer also being prosecuted and found to have breached its primary duty. This was the case in SafeWork NSW v O’Sullivan. In the sentencing decision there was indication of deficiencies in John Cook’s (the employer) relevant safety compliance, including a lack of adequate supervision of forklift safe operating procedure, which could be said to have also caused the forklift to collide with the driver (or more aptly put – failed to prevent the risk of forklift collision). It therefore comes as no surprise that it has been reported that John Cook was separately prosecuted for breach of its primary duty in respect of the incident and recently entered an enforceable undertaking with the work safety regulator in satisfaction of the prosecution against it.

Thirdly, in the case where both the worker and employer are prosecuted for breaching their duties, bar a situation where the employer’s failing in its safety compliance is obvious and significant, it may be difficult to neatly disentangle respective responsibilities associated with worker error and employer failings underlying the incident, impacting on the employer’s culpability in relation to the incident. That is, a prosecution of a worker for breaching its worker duty may, depending on the circumstances, result in reduced culpability for the employer in respect of any prosecution for breaching its primary duty of care. Indeed, even if a worker is not prosecuted by the work safety regulator for breaching their duty, the worker conduct may still be relied upon by the employer to reduce its own culpability, commonly seen in the context of submissions on sentencing by the employer that worker conduct has lessened the objective seriousness of the employer’s offence, thereby warranting a reduced penalty by the court. Therefore, particularly in situations where the employer’s safety compliance is reasonable (but not necessarily perfect), and suspected worker error apparently causing or contributing to the major safety incident seems on its face egregious, this should signal an occasion for the employer to properly review^[5] the circumstances of the major safety incident including its involvement, and relatedly, its reactive work safety compliance strategy in managing its response to any work safety regulatory investigation into the incident.

Employer Takeaways

It remains true that employers should strive to build structured and systematic work safety compliance systems, with a key purpose of avoiding serious workplace safety incidents. Relevantly, the system should consider and effectively control foreseeable human error in relation to work performance. Prevention is indeed better than the cure.

Where a major workplace safety incident does occur, worker error may well impact on employer’s culpability in relation to the incident under WHS legislation. To properly assess this matter - it is important for the employer, at the earliest opportunity, to conduct a thorough (and ideally privileged) investigation into the incident – which looks not just at the immediate cause of the risk underpinning the incident, but the secondary cause, as the latter will be critical to assessing employer culpability.

Through early information gathering, at a micro level, an employer can engage in effective and sophisticated (legal risk and tactical based) decision making when responding to a work safety regulatory investigation having regard to the implications of the overlay of its conduct and responsibilities with that of worker(s) error involved in the incident. Early indication of employer liability could conceivably influence decisions relevant to responding to a regulatory investigation (and beyond), such as representation of workers at inspector interviews, whether to review compliance notices such as improvement notices, pivoting to an enforceable undertaking if possible, and at an early stage of any subsequent prosecution proceedings, making appropriate representations to the prosecutor as to liability or otherwise engaging in effective plea bargaining. At a macro level, this enables the GC/employer decision-maker(s) to make early informed decisions as to commitment of resources and spend in responding to a regulatory investigation (and indeed any subsequent prosecution); specifically, to determine whether the level of commitment contemplated is warranted having regard to perceived gains.