Despite the best efforts of systems and managers, sometimes workers don’t follow instructions or established procedures. When this leads to a health and safety incident in the workplace, it is common for organisations to point the finger at the worker involved as they try to escape liability.

The recent Australian case of Landmark Roofing Pty Ltd v SafeWork NSW serves as a timely reminder that it is not a defence to say a worker did “x” when they were instructed to do “y”.

What happened?

Landmark Roofing Pty Ltd (Landmark) was engaged to replace the roof of a building at a site in Mayfield, New South Wales after the building suffered fire and storm damage. Part of the work Landmark was asked to complete involved the removal and replacement of two skylights.

The skylight replacement work was undertaken by two Landmark employees, one a 20 year old first year apprentice, and the other his 26 year old supervisor. Both workers were on the roof together to complete the work, and both were wearing harnesses. However, neither workers’ harness was connected to anything on the roof, and there was no safety mesh underneath them in the area of the skylight replacement work.

During the work, the apprentice stood on and fell through the damaged skylight, falling approximately six metres onto a crane rail. The apprentice died in hospital nine days later.

SafeWork NSW investigated the incident and prosecuted Landmark for breaching its primary duty of care to ensure the health and safety of its workers.

The District Court decision

Landmark defended the charge, but was unsuccessful.

At trial, District Court Judge David Russell found that Landmark failed in various respects to ensure the safety of its workers including by failing to:

• direct them to use fall restraint systems on the roof;
• supervise workers to ensure fall restraint systems were used; and
• develop a task-specific safe work procedure for the skylight removal work.

This seems unremarkable and Landmark was convicted and fined $400,000.

The Court of Criminal Appeal decision

Landmark was undeterred, and appealed.  The key ground of appeal was Landmark’s argument that it should not be held liable in circumstances where one of its workers (the supervisor) deliberately disobeyed instructions given by the company that all workers performing work at height must use fall protection. Landmark submitted that it was not responsible for failing to ensure the workers were properly secured to a fall arrest system because the supervisor’s breach of procedure could not reasonably have been foreseen by Landmark.

The Court of Criminal Appeal rejected this and pointed to section 244 of the relevant New South Wales law (equivalent to section 161 of our Health and Safety at Work Act (HSWA)) which provides that:

“any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.”

The Court held that the plain reading of this section meant the failures of Landmark’s supervisor were also the failures of Landmark. Whether the supervisor’s conduct could be foreseen and whether it represented a deliberate breach of the company’s instructions or procedures was not relevant to this conclusion.

Comment

While some may see this result as frustrating, it is not surprising. In the same way, on the basis that a supervisor may not have actual authority (given an instruction to the contrary), but will still have the apparent authority by virtue of the role as supervisor.

This is therefore a timely reminder that attempts to shift blame onto workers in the aftermath of a workplace accident will not save you from potential liability. This is the case even where the conduct of the worker is a deliberate breach of the company’s instructions or procedures.

In cases of worker non-compliance, it is open to WorkSafe to also consider and take enforcement action against individuals for breaching their duties in section 45 of the HSWA. These duties include an obligation on workers to comply, so far as reasonably practicable, with any reasonable instructions given by the organisation to allow it to comply with its health and safety obligations under the HSWA.  Unfortunately though this is not something WorkSafe commonly does.

In order to minimise the risk of potential liability, we recommend that organisations actively consider and account for the risk of worker non-compliance in all workplace risk assessment and job planning activities.

If you are unsure about the nature and extent of your obligations when a worker contravenes instructions, our team of health and safety experts would be happy to assist you.