The first sentence has been handed down by a Judge, with an auto wrecking yard ordered to pay a $3 million fine and a suspended jail sentence for the directors under tough new industrial manslaughter laws, writes Compensation Law Accredited Specialist, and firm Partner, Jeremy Roche.
Attwood Marshall Lawyers welcomes the decision of Judge Rafter with respect to the industrial manslaughter of Barry James Willis. Mr Willis was crushed by a reversing forklift whilst working at Brisbane Auto Recycling on 17 May 2019.
Industrial Manslaughter Provisions
Industrial manslaughter provisions that impose penalties on both companies and its senior officers were first introduced to Queensland legislation in 2017. These laws were aimed at protecting Queensland workers. Despite being introduced in 2017, the Industrial Manslaughter provisions remained untested until Brisbane Auto Recycling and its directors were prosecuted in Queensland’s first industrial manslaughter case.
The court fined Brisbane Auto Recycling $3 million and convicted the company and its directors, sentencing both directors Asadullah Hussaini and Mohammad Ali Jan Karimi to 10 months imprisonment (suspended for 20 months).
The company directors were particularly culpable in circumstances where they:
- Lied to Mr Willis’ family and investigators as to how Mr Willis’ workplace death occurred. They blamed Mr Willis, lied about who was driving the forklift (which happened to be an unlicensed forklift driver), and deflected responsibility;
- Initially failed to disclose the CCTV footage of the incident to investigators;
- Failed to take out mandatory workers compensation insurance to cover Brisbane Auto Recycling employees in the event of injury or death;
- Failed to ensure that the company implemented safe systems of work to minimise the risk of injury or death to its workers.
In this case, both the directors knew the risk to the safety of their workers but made a conscious decision to disregard that risk, according to the decision handed down. The directors are extremely fortunate to have avoided a significant custodial sentence with those circumstances of aggravation involved.
A Wake-up Call
Queensland’s first industrial manslaughter sentence slams home a decree to all company directors that have cavalier or reckless attitudes towards worker safety. The penalty imposed in this case shows that it will not be tolerated. In addition to penalties to the company, significant personal ramifications can also apply to the directors themselves (including criminal convictions and jail time). Although the directors escaped actual jail time in this instance with a suspended sentence, all employers will be on notice that workplace health and safety is a serious issue which cannot be taken lightly. Any workplace fatality has a devastating impact on the worker’s family with many dependant spouses and children involved. Although certain dependant family members have entitlements to compensation through WorkCover, this is manifestly inadequate for the loss of a loved one. Sadly, only dependant spouses and children usually qualify for a death benefit.
In this instance, Mr Willis leaves behind four children and six grandchildren.
Workplace Deaths in Australia
Despite an increasing awareness of workplace safety laws, industry safety regulation and modernisation of safe work procedures, there remains far too many workplace deaths in Australia in recent years.
As reported by Safe Work Australia, as at 4th June 2020, there have been 78 Australian workers killed at work this year. In 2019, 178 Australian workers were fatally injured while working, compared with 144 workers in 2018, of which 31% of those worker fatalities during 2018 were due to a vehicle collision.
The Brisbane Auto Recycling decision will likely force a number of company directors to re-evaluate their safety procedures now that the personal culpability of directors has been sheeted home.