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My
Blog Site whsblog.com
Anything of interest to the OHS Committee in
NSW,
People at work,
Safety, Travel and anything quirky or
funny.
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Lessons From History
Summary of
interesting OHS cases
Robbery at the
Supermarket
When hazard control is not being enforced and an event
happens NSW OHS Act 2000 - s8(1);
In the case of Inspector Robert Littley v Franklins Pty Limited (trading as Franklins) [2005] NSWIRComm 359 we
learn that the victim of a crime can be punished for the OHS failings revealed by that crime.
In the Franklins case, a supermarket at Sutherland owned by the defendant was robbed after closing time. The
thieves gained entry to the store by climbing a fence and entering through the delivery dock, which was open,
contrary to the applicable policies. Three employees were threatened and approximately $18,500 was stolen, when
an employee was forced to open the safe in the cash office.
The charge was that the defendant did fail, on 24 July
2003 contrary to Section 8(1) of the 2000 Act, to ensure the
health, safety and welfare at work of all of the Defendant's employees, and in particular, HK, LW and
AL.
The particulars of the charge are as follows: The Defendant
failed to provide a safe system of work in that it:-
1. failed to adequately enforce an existing policy which
required that the back dock roller door be closed at all times unless deliveries were being received,
preventing unauthorised access;
2. failed to minimise the risk of an armed robbery or hold
up by providing duress alarms/buttons for use by employees
At the rear of the premises was an area known as the "dock". The dock area was
the receiving dock where merchandise for the Defendant's business at the premises was delivered. The dock area
also contained a storage area, the staff meal room, the general office and the cashier's office. The dock area
was fenced off with a two to two and a half metre high wire mesh fence, with one side of the fence bordered by
a tubular handrail approximately one metre high.
On 24 July 2003, once the supermarket store had closed, HK,
a seventeen year old checkout operator employed by the Defendant, was accompanied by LW, back-up head cashier
employed by the Defendant with three years experience at the premises, to the cash office to count the money
from her drawer
At approximately 9:10pm to 9:20pm, three armed villains
gained access into the dock area. The villains then entered the storage area through the open dock roller door.
The three villains entered the cashier's office and confronted HK. The villains wore balaclavas and were armed
with hand guns and a knife. The villains demanded that HK open the safe present in the cash office but she was
not able to do so. The villains caused HK to contact the back-up head cashier, LW, who attended at the cash
office and under force of arms was made to open the safe in the cashier's office. At the same time, AL a night
packer observed what was occurring but before he could raise the alarm, one of the villains threatened him with
a gun and ordered him to sit in the meal room.
All three employees threatened by the villains suffered
shock and trauma and were provided with counselling. HK the seventeen year old girl at the time of the robbery
suffered post-traumatic stress and returned to work on 13 November 2003 after 16 weeks off work. LW also
suffered post-traumatic stress and was absent from work for four weeks. AL did not require time off from
work.
The case advanced for the prosecutor by its solicitor, Ms
MacAlister, was that the evidence showed that a serious offence had been committed. The robbery which took
place was foreseeable, given the substantial sums of money handled at the store, sufficient to attract the
attention of persons of ill intent; the defendant had already identified the risk of such robbery and had
implemented policies designed to minimise that risk. There were straightforward steps immediately available,
which would have minimised the risk of such robbery. Various steps taken afterwards confirmed this. Given the
serious nature of the breach in question, both general and specific deterrence must feature in the penalty
imposed, notwithstanding the significant steps taken subsequently by the defendant, to ensure its safety
obligations were met.
The prosecutor accepted that there were various relevant
subjective matters present, which should be taken into account in determining penalty. They included that this
was a first offence; the defendant's demonstrated commitment to safety; the significant measures implemented
afterwards, to ensure safety; the co-operation afforded to the prosecutor and the early
plea.
The case advanced for the defendant by its solicitor, Ms
Mansfield, was that the incident had occurred in circumstances where the defendant had in place policies
designed to ensure that its safety obligations were met. The failure which had resulted in the entry of the
plea, was argued to be a failure to sufficiently enforce those policies, in the particular
circumstances.
The defendant accepted that the risk of robbery was foreseeable for any retail operation dealing with cash; it
had assessed the risk as a real one; but had taken the view that it was a risk likely to be infrequent, based
on its experience in the industry and at that store.
Furthermore, the need for duress alarms at the store had
been identified, but not introduced, because of a misjudgement as to the likelihood that a robbery might occur
in the intervening period.
The defendant's propensity to re-offend should be judged as
low on the evidence and its genuine contrition accepted. Given its co-operation and early plea, it should be
afforded the maximum discount available and a penalty in the lower range
imposed.
"For all of the reasons given, I find the defendant guilty
of the charge. The defendant is ordered to pay a penalty of $94,250"
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