Newsletter 

Q4 - 2019  Oct - Dec.

# Don't stop the BBQ of a work mate and get a fine of $12,000.

#  Company fined £1,000,000 and employee gets 6 months custodial sentence in UK case  

#  Foster carer is a volunteer worker  

#  Spit-roast apprentice?......anybody? 

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Don't stop the BBQ of a work mate and get a fine of $12,000

SafeWork SA successfully prosecuted Jeffrey Rowe, who was convicted and fined $12,000.  Rowe pleaded guilty to a breach of s 31 of the Work Health and Safety Act (WHS Act) for reckless conduct, which exposed his fellow worker — an apprentice — to a risk of death or serious injury. 

A lunchtime ‘workplace prank’, an apprentice electrician was squirted with a flammable liquid and set alight. 

Two site supervisors, Rowe and Luke Chenoweth, were charged by SafeWork SA following the incident. Chenoweth’s case remains before the South Australian Employment Court as does that of his employer, Tad-Mar Electrical. Tad-Mar Electrical is being prosecuted for a Category 2 offence. 

Chenoweth is charged with allegedly squirting flammable liquid onto the apprentice’s boot, pants and shirt. He is also alleged to have used a cigarette lighter to ignite the liquid on the apprentice’s boot and shirt, and to have threatened to light his pants while chasing him around the lunchroom.  

Rowe has been convicted for failing to take steps to stop Chenoweth from squirting and igniting the liquid and for failing to take steps to extinguish the flames on the apprentice’s shirt. He was also convicted for squirting more flammable liquid on the apprentice’s shirt while it burned. 

Fortunately, the apprentice was not seriously injured. 

This is the first successful Category 1 prosecution in South Australia, and it is believed to be the first successful bullying prosecution under the harmonised Work Health and Safety legislation, nationally.  

In his judgment, Deputy President Magistrate Cole noted the primary allegation against Rowe was “that he failed to intervene to stop the actions of Chenoweth 

Company fined £1,000,000 and employee gets 6 months custodial sentence in UK case  Aug 2019  

Clancy Docwra and one of its employees have been sentenced for health and safety breaches after another worker was struck by an excavator and killed. Penalty £1,000,000 and a six month custodial sentence

Southwark Crown Court heard how, on 2 March 2014, during night work at a site in Stratford, Kevin Campbell, was struck by an excavator mounted vibrator (EMV) attached to a 35-tonne excavator that he was working in close proximity to.

Campbell had been disconnecting lifting accessories from a metal pile that had just been extracted from the ground when he was fatally crushed against a concrete wall a short distance away.

Another site operative who was directly next to him also faced a risk of being struck.

A Health and Safety Executive (HSE) (the UK equivalent of WorkSafe) investigation found principal contractor Clancy Docwra Limited failed to ensure the safety so far as is reasonably practicable of its employees and of others who were not their employees working on the site. 

The investigation also found that Daniel Walsh, who was the site supervisor for the site and the person operating the excavator at the time, failed to take reasonable care for other persons on site at the time.

Clancy Docwra Limited of Middlesex pleaded not guilty to safety breaches and was fined £1,000,000 and ordered to pay costs of £108,502.30.

Daniel Walsh of Orpington, Kent also pleaded not guilty and was given a six month custodial sentence, suspended for 12 months and ordered to pay costs of £15,000. 

Foster carer is a volunteer worker  Sept 2019

An ACT foster carer has been deemed a worker by the Fair Work Commission paving the way for a stop-bullying order against Barnardos case managers to proceed. 

Foster carer Benjamin Legge will be allowed to have a stop-bullying order heard by the Fair Work Commission after Commissioner Peter Hampton determined being a foster carer meant he was a volunteer worker for Barnardos. 

Commission documents said Mr Legge contends he was subject to workplace bullying conduct by one or more of the case managers and other managers who work for Barnardos Australia. 

In order to have the bullying claims heard by the Fair Work Commission, Mr Hampton first had to decide if Mr Legge was deemed a Barnardos worker under the legislation and therefore eligible to make the application. 

Barnardos, the lead agency in the ACT Together consortium delivering foster care and out of home care to children in Canberra, denies the claims. 

A 35-page decision handed down on Wednesday by the Fair Work Commission showed Barnardos tried to argue the man was not considered a worker. 

Barnardos Australia argued that Mr Legge's work as a foster carer is more closely akin to that of domestic work by a family member. 

The decision said Barnardos is a "significant beneficiary" of the work undertaken by Mr Legge. 

"The allocation of children or young people to Mr Legge as a foster carer is undertaken to meet its obligations under the Child and Young People Act and the ACT Agreement and Mr Legge's role in that regard is in practice to work along with the case managers and Barnardos Australia more generally to assist it to meet those obligations," the decision read. 

"Barnardos Australia contends that Mr Legge's work as a foster carer is more closely akin to that of domestic work by a family member," the documents said. 

The commissioner Mr Hampton found Mr Legge was performing work in his capacity as a volunteer for Barnardos. Mr Hampton said he had considered the issue only in the context of Mr Legge's case, and had not determined whether foster carers were workers more generally. 

"Each case must be considered in its own jurisdictional context," Mr Hampton said. 

https://www.canberratimes.com.au/story/6372325/fair-work-commission-determines-act-foster-carer-is-a-worker/?cs=14225 

Spit-roast apprentice?......anybody? 

SafeWork SA successfully brought proceedings against two former supervisors (a site supervisor and a leading hand) at an electrical company who had bullied an apprentice, including setting his clothing on fire. 

The South Australian Employment Tribunal (SAET) heard the leading hand squirted flammable liquid onto the 19-year-old apprentice’s boot,  which he then lit with a lighter. The leading hand then squirted flammable liquid on the apprentice’s crotch area, and then chased him down and pinned him against a wall to squirt more flammable liquid on his shirt sleeves. The apprentice’s shirt caught on fire and the site supervisor then squirted more flammable liquid on the apprentice’s shirt, causing more flames.  

The apprentice had singed hair on his left arm but thankfully had no serious injuries. 

Both supervisors pleaded guilty to engaging in reckless conduct that put the apprentice at risk of death or serious injury, in breach of their health and safety duty under the South Australia Work Health and Safety Act 2012. 

In sentencing, the site supervisor, who had worked at the company for nearly 30 years prior to his dismissal, made submissions as to his otherwise good character, his lack of offending history and his inability to find another job. While submitting this was a “high jinx gone wrong”, he had immediately acknowledged his wrongdoing and accepted the seriousness of the matter. 

The leading hand, who at the time of the incident was 26 years old and had been working at the company for nine years, submitted this incident was a defensive mechanism to deflect from bullying he had himself been victim to in the workplace. He submitted he was deeply remorseful and, now he had found alternative employment, he realised the gravity of his conduct. According to the leading hand, this was “an act of gross stupidity” in the context of poor workplace culture. 

For these reasons, the SAET held that general and personal deterrence needed to be featured in the penalties. After applying a 40% discount for their guilty pleas, the site supervisor was fined $12,000 (mostly for failing to stop the leading hand) and the leading hand was fined $21,000 (for engaging in the majority of the conduct). 

The SAET also recorded convictions against both supervisors noting that to not do so would fail to reflect the seriousness of the nature and circumstances of the offences. 

https://www.smartcompany.com.au/business-advice/legal/workplace-bullies/