Director not too remote to avoid WHS liability

It was confirmed in Inspector James v Paul (No 2)[2011] NSWIRComm 117 (5 September 2011) (James) that a company director cannot rely upon their apparent remoteness from the day to day operations of their business to avoid liability for a work  health and safety (WHS) incident.       

An employee of  Deckorform Pty Ltd died of serious injuries sustained after a machine he had been operating malfunctioned.   WorkCover NSW findings were  that, at the time of the incident, the machine had been operated without a number of safeguards.  If these safeguards had been in place, they would have prevented the incident from occurring.   

Deckorform and its director, Mr Robert Paul, were charged and pleaded guilty to breaching sections 8(1) and 26 of the Occupational Health and Safety Act 2000 (NSW) respectively.   

In the first instance, Justice Marks of the NSW Industrial Relations Commission acknowledged that the incident involved a ‘most serious breach of the Act’ and occurred in a workplace that was ‘defective and manifestly unsafe’. His Honour also found that plant and equipment at the worksite was being operated by workers who were not competent to operate them safely or to undertake necessary safety audits of the machinery.   

Notwithstanding these considerations, and despite recognising that Mr Paul had ultimate responsibility for implementing and ensuring compliance with WHS standards, his Honour dismissed the charges against Mr Paul on the basis that he was too ‘remote’ from the day to day operations of the business.   

The decision of the Commission was appealed by WorkCover NSW to the NSW Industrial Court (Court) on the basis that Justice Marks had underrated Mr Paul’s role in the management of Deckorform.   

The Court stated that it was commonplace for directors to be remote from the day to day operations of businesses and that Justice Marks had erred in giving this factor weight.   

The Court confirmed that while a director cannot necessarily be expected to have a detailed awareness of the day to day activities of the businesses they manage, Mr Paul, as director, was ultimately responsible for the WHS standards of the business, including ensuring that risk assessments of machinery were undertaken by appropriately trained staff.   

Importantly, Mr Paul’s WHS responsibilities were not reduced even though he relied upon local management to attend to the day to day operations of the business; and he did not have a detailed awareness of Deckorform’s day to day operations. 

Accordingly, the Court upheld the appeal and fined Mr Paul $15,000.   

In terms of the new WHS act that came into operation in NSW on January 1^st 2012, an officer of a company can be fined a maximum of $600,000,  5 years, or both.