Be more specific! WHS charge dismissed due to insufficient complaint

Complaints or charges issued by regulators that do not identify the specific omissions that are said to constitute an offence may be dismissed. This has recently been confirmed by a decision in the Queensland District Court.

In Archer v Simon Transport Pty Ltd [2015] QDC 263, the employer, Simon Transport Pty Ltd, was charged with breaching its general duty of care under section 19(1) of the Work Health and Safety Act 2011 after one of its employees was injured while unloading a truck at a customer’s worksite. The general duty of care under section 19 imposes an obligation on employers to ensure, so far as is reasonable practicable, the health and safety of workers while they are at work.

The complaint issued by Workplace Health and Safety Queensland identified the employer’s alleged failures to be:

  • failure to develop and implement adequate procedures to manage the hazards to sole transport drivers
  • failure to develop safe work procedures for the unloading of rolls of electrical cable
  • failure to undertake any or any adequate risk assessment for unloading rolls of electrical cable and
  • failure to develop any or any adequate safe systems of work.

The complaint then went on to identify certain control measures which the employer could have implemented. The specified control measures however, did little more than repeat the alleged failures of the employer.

In Kirk v Industrial Court of NSW (2010) 239 CLR 531, the High Court found that in a criminal complaint or charge, the prosecution must identify the legal nature of the alleged offence and its essential factual ingredients. Where a statutory duty is concerned, the complaint or charge alleging a breach of duty must state precisely what reasonably practicable measures the defendant (or accused) could have taken, but did not take. The distinction can sometimes be a subtle but important one.

In this case Judge Koppenol found that Workplace Health and Safety Queensland’s complaint against Simon Transport did not identify how the work procedures, risk assessment or safe systems of work that were in place fell short of the required standard of care. The complaint therefore failed the Kirk test and was dismissed.

You can read the full decision in Archer v Simon Transport Pty Ltd [2015] QDC 263 here.

Picture credit – flickr.com

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