The defendant held duties under s. 28 of the Work Health and Safety Act 2011 as a worker, specifically under s.28 (b), being a duty to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons.
An incident occurred on 19 January 2016 at a company specialising in the manufacture and supply of plumbing products. The defendant (49 years old) was employed as a maintenance fitter and first aid officer. At approximately 2:25pm workers had washed up and were preparing to go home for the day. A 19-year-old worker was in the tool room talking to a co-worker. He felt his leg get hot, he looked down and saw flames around his legs, he turned and saw the defendant standing behind him with an aerosol spray can and a lighter in his hands. The spray being 'Cool It Spray' used for first aid applications, in particular, to treat minor burns. The defendant told the injured worker that it was a joke to cheer him up and offered first aid, however the injured worker declined, leaving immediately and driving himself to a doctor for treatment. He sustained 1st degree burns to the rear of his right calf (singed hairs, stinging and redness) and some emotional distress.
On 7 December 2017, the defendant pleaded guilty in the Maroochydore Magistrates Court to breaching s.32 of the Work Health and Safety Act 2011, for a failure to discharge a duty owed as a worker.
Magistrate Maxine Baldwin fined the defendant $2000 and ordered professional and court costs totaling $1092.50. On recording of conviction, her Honour noted that she would have been persuaded by the prosecutions submissions on that point, but due to the lack of previous history, minor injuries sustained and the affect a conviction would have on ability to obtain future employment Her Honour made an order that no conviction be recorded.
In deciding penalty, the Magistrate described the incident as a ridiculous scenario that could have gone horribly wrong. Acknowledging there was a need for general deterrence in penalty, her Honour did not believe specific deterrence was an issue as the defendant had shown remorse and was unlikely to do something like this again. However, the Court rejected the defence submission that a good behaviour bond was appropriate, determining that a financial penalty was necessary. The defendant's remorse, cooperation with the prosecution and company's internal investigation, early plea of guilty and lack of previous convictions for work health and safety breaches, were taken into account by her Honour. Positive character references provided by the defendant, as well as medical evidence to explain the defendant's behaviour at the time of the incident and ongoing health issues post incident were also considered.
Considerations for prevention
(commentary under this heading is not part of the court's decision)
Risk management involves identifying the hazards, evaluating the consequences and likelihood of harm that may result from the hazard, deciding and implementing control measures to prevent or minimise the level of the risk from the hazard and monitoring the effectiveness of the control measures to ensure they remain working correctly. Further, it must be ensured that resources are merely used for its given purpose and not for any ulterior objectives. When deciding and implementing control measures to prevent workers from engaging in activities that is purely deemed as a funny 'joke', obligation holders should consider every potential risk a simple item could impose on the workplace. Workers should not, in any given work environment, take advantage of any tools or accessories provided to them. Comprehensive training is necessary to warn workers not to create hazards deliberately.
- Date of offence:
- 1st degree burns to the rear of the right calf and emotional distress
- Maroochydore Magistrates Court
- Maxine Baldwin
- s.32 of the duty under s.28 Work Health and Safety Act 2011
- Decision date:
- Maximum Penalty:
- Conviction recorded:
- CIS event number: