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Recklessness in the workplace under the spotlight

19 February 2019

#Workplace Relations & Safety

Michael Selinger

Published by Michael Selinger

Recklessness in the workplace under the spotlight

The conviction and sentencing to jail for one year of a roofing company director in Queensland, has again highlighted the trend by the regulators to bring ‘reckless conduct’ charges against individuals who are seen to have flagrantly disregarded the safety of others.

Mr Gary Lavin, and his company Multi-Run Roofing, were each found guilty of reckless conduct following the death of a Mr Te Amo in 2014. Mr Te Amo fell almost six metres due to a lack of handrails which Mr Lavin decided were too expensive, despite that not actually being the case and there in fact being sufficient funds from his client, being his brother, to install them. 

A jury convicted Mr Lavin who was then sentenced by the judge to one year in prison on the basis that his conduct was so reprehensible that it warranted a custodial sentence. The court found that he had shown a flagrant disregard for proper safety methods, and that he was motivated by the desire to generate profits for himself and his business. The business was also fined a record $1million to be paid in six months.

Reckless conduct breaches

Prosecutions for ‘reckless conduct’ have featured recently in the media. A 72-year old owner of a scrap metal business, Maria Jackson was also recently sentenced to six months in prison and a $10,000 fine for reckless conduct in failing to ensure that a scrap metal bin in which a worker was standing was properly secured to the raised forklift tines holding up the bin. The worker and the bin fell resulting in a fatal crushing.

Under harmonised safety laws, a category one offence is also known as a ‘reckless conduct’ offence. In that offence it is that the alleged offender must have engaged in conduct, without reasonable excuse, that exposed another person to a risk of death or serious injury and that the offender was reckless as to the risk to that individual. There must be conduct which is more than mere inadvertence, negligence or carelessness, but that there was a clear reckless disregard for the safety of another person, for which there was no reasonable excuse. 

The prosecution has the burden to prove beyond reasonable doubt that the conduct was engaged in without reasonable excuse. 

The defence to these charges can be either to demonstrate that there was no unreasonable conduct or, if there was such conduct, that the conduct did not have any causal link to exposing another person to the risk of harm. Additionally, an alleged offender can show that there was no recklessness as to the harm. 

In both the Lavin and Jackson matters, the courts were satisfied that the requisite level of recklessness existed. There are a number of prosecutions on foot at the moment, including the prosecutions in the ACT arising out of the death of Herman Holtz from a crane collapse, where further charges of ‘reckless conduct’ will be considered by the Court. 

Author: Michael Selinger

Contacts

Sydney
Michael Selinger, Partner
T: +61 2 8083 0430
E: michael.selinger@holdingredlich.com

Stephen Trew, Partner
T: +61 2 8083 0439
E: stephen.trew@holdingredlich.com

Melbourne
Charles Power, Partner
T: +61 3 9321 9942
E: charles.power@holdingredlich.com

Benjamin Marshall, Partner
T: +61 3 9321 9864
E: ben.marshall@holdingredlich.com

Brisbane
Rachel Drew, Partner
T: +61 7 3135 0617
E: rachel.drew@holdingredlich.com

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Michael Selinger

Published by Michael Selinger

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