A recent prosecution of two workers for Category One offences under the harmonised WHS laws resulted in convictions but no jail time for the offenders.
The South Australian Employment Tribunal heard that a site supervisor, Mr Rowe, squirted flammable liquid onto an apprentice’s boot and used a cigarette lighter to ignite the liquid. A second employee, Mr Chenoweth then squirted the liquid onto the apprentice’s pants and proceeded to chase the apprentice around the lunchroom, pinning the apprentice to a wall and threatening to ignite the liquid. Chenoweth and Rowe then poured more flammable liquid onto the shirt of the apprentice and set it alight. Thankfully, the apprentice was able to remove his shirt and did not suffer a serious injury and or require hospital attendance. Unsurprisingly, both men were dismissed as a result of the incident. Before the Tribunal, they pleaded guilty to the section 31 charge.
Rowe and Chenoweth were sentenced under section 31 of the Work Health and Safety Act 2010 (SA) for a ‘Category One’ offence of reckless conduct with a maximum penalty of $300,000 and/or 5 years’ jail.
After taking the guilty pleas into account, the Tribunal fined Rowe $12,000 and Chenoweth $21,000.
Deputy President Magistrate Cole found that in both cases a criminal conviction ‘ought to be recorded to reflect the seriousness of the offending’ and that the apprentice had been the subject of other bullying behaviour.
The case demonstrates the need for employers to be vigilant in ensuring ‘zero tolerance’ towards reckless or stupid behaviour that exposes others in particular young workers to aggressive and intimidating conduct. It is essential for employers to consider if their bullying and harassment policies are up to date but more importantly to assess whether training and instruction are sufficient to reinforce the critical safety measures that pranks, bullying and other stunts are not only unacceptable, but are actually criminal activities.
If you wish to discuss any workplace issue regarding bullying and workplace safety, please contact a member of our Employment, Workplace Relations and Safety Team.
Martyn Campbell v Jeffrey Rowe  SAET 104
Campbell v Chenoweth  SAET 181