Industrial manslaughter offence introduced in New South Wales
On 20 June 2024, the New South Wales Parliament passed legislation to include a new criminal offence of industrial manslaughter under work health and safety legislation.
Read more...It’s been said many times before, but we simply can’t understate the importance of employers enforcing health and safety policies and procedures in the workplace, including incident management procedures. These policies and procedures can save lives and limbs and allow employers to investigate incidents to prevent future occurrences.
The significance of such policies and procedures was recently confirmed by a decision of the Fair Work Commission (FWC) in which an employee’s breaches of an incident management procedure provided a valid reason for the termination of his employment (Edgar v SMS Operations Pty Ltd T/A Swick Mining Services [2017] FWC 3826).
The employee was a diamond miner and was driving a light vehicle underground when the vehicle drifted to one side, got caught in a drain and collided with a wall. The employee backed the vehicle out of the drain and drove it to a safe place underground where he changed a damaged wheel before driving the vehicle above ground to a workshop area. It wasn’t until after the vehicle was in the workshop that the employee informed his superiors of the accident.
The employer had incident management procedures in place which stated that the scene of any accident should be preserved. In the circumstances, the employee should have left the vehicle underground where it was, informed a superior immediately and barricaded the area to isolate the accident site. The employee’s failures in this regard formed the foundation of the employer’s reasons for dismissing him.
The employee brought an unfair dismissal claim against his employer, arguing that at the time of the accident and his subsequent failure to follow proper procedure, he was recovering from the flu and was fatigued from the shift he worked the previous day.
In considering whether the employee’s dismissal was unfair, the FWC examined whether there was a valid reason for the dismissal. The employee conceded that he was trained in the proper incident management procedure and failed to follow it on the occasion of the accident. The FWC found that the employee’s failure to preserve the scene of the accident for investigation, or report the accident immediately provided the employer with a valid reason for dismissal.
In addressing the employee’s argument that his work-related fatigue was a contributing factor to his action on the day of the accident, the FWC noted that the employee did not raise his alleged fatigue at the time of accident or during a subsequent investigation. The issue of fatigue was not raised until the hearing of the matter and so the FWC did not find it a credible argument.
Ultimately, the FWC found that the employee had been fairly dismissed and that his employer had a valid reason for doing so.
This case provides reassurance to employers that the FWC will treat breaches of safety policies and incident management procedures seriously, especially in safety critical industries.
No matter what their industry, employers should always treat safety incidents seriously and require that employees act in accordance with established policies and procedures.
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