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What happens when your safety manager or consultant give bad advice?

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What happens when your safety manager or consultant give bad advice?

1 July 2020 by Andrew Douglas

Several prosecution cases are coming through the system where OHS Managers and consultants are being prosecuted for flawed advice and bad decision making. No surprises really, as HR managers have already been prosecuted for knowingly allowing wrongful decisions as seen with:

  • wages FWO v Oz Staff Career Services [2016], notice Cerin v ACI[2015]
  • sham contracting FWO v Centennial Financial Services [2010] and
  • the unfortunate Nicole Kidman (no relation) in Director of the FBIC v Baulderstone [2012] for adverse action at the behest of a Union for non-union member.

Safety is now a mature and evidence based profession and runs the same risks as HR under its supervising legislation – the Safety Legislation. But the FWC offers no safety net for poorly performing safety professionals or HSR’s even when they are the Union delegate. As was found out by Mr Jay Scoffen, when he failed to carry out two safety systems that posed significant risks to himself. The case is Scoffen v The Griffith Coal Mining Company.

The facts in this case make interesting reading.

Mr Scoffen was a HSR and union delegate onsite and an auto-electrician. He knew of the key safe work instruction surrounding the safe movement of heavy equipment and the need for a JSA in certain circumstances. He failed to fill out the JSA when he was required to under SWI and failed to follow the ‘Tags and Isolation’ standard (another SWI) in relation to a grader he was to work on that created a danger. He was to undertake work on the grader and didn’t need it running. So it had to be locked out and tagged. Mr Scoffen knew about how serious a breach this was as contractors had been removed from the site for similar breaches. By not following the rules he placed himself at risk of serious injury if the grader was manned and moved.

The FWC explained, quite correctly, the fact that someone was not injured or killed doesn’t make a risk low. The risk was high and the failure to address those risks as required (and would have made him safe) was serious misconduct). Despite his 13 years of service with only one past breach the FWC upheld the termination. His failure to acknowledge his wrong doing was the nail in his coffin!

Learnings

  1. Be clear, thorough and assess for competency in all safety training;
  2. Ensure you have a record of the specific training and always enforce a breach and
  3. Treat policies as lawful and reasonable directions and make sure your policies are, as a matter of law, policies!

Have a question or need advice?

Our team is available to clarify any questions you have and provide the right advice for your business and workforce. Contact Andrew Douglas at andrew.douglas@fcwlawyers.com.au or on 0488 151 503.

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