A pair of brothers are currently being sentenced for covering up a workplace incident, which led to:
- the severe brain injury of a young employee; and
- Aimex Engineering receiving reduced fines under the Health and Safety at Work Act 2015 (HSWA).
On 21 July 2023, former Aimex health and safety officer William Sullivan was sentenced to nine months imprisonment for making a false statement. Sentencing for his brother, Steven Sullivan, for perverting the course of justice will commence next week.
Judge Ruth was highly critical of William in the judgment, stating: “This man is damaged for the rest of his life because you took the view you wouldn’t abide by your obligations as a health and safety officer… The dereliction of your duty … has led to an entirely preventable incident. It’s on your shoulders.”
What happened?
In July 2019, 19-year-old apprentice Brook Palmer was cleaning an enclosed Aimex boat engine room. He had rags, a spray bottle, a fan for ventilation and a 20-litre container of brake fluid. Brook was not wearing a protective mask or gloves at the time. He was later found unresponsive on the floor and was rushed to hospital.
As a result of exposure to the toxic brake fluid, Brook suffered a debilitating and permanent brain injury. Aimex pled guilty to charges under HSWA for exposing an individual to risk of serious injury or illness.
In 2021, the District Court found that Aimex failed to take reasonably practicable steps to keep Brook safe. These included a failure to:
- conduct an effective risk assessment;
- develop, implement and monitor an effective safe system of work for exposed workers; and
- ensure the provision of effective information, supervision and training.
Although a fan was used, it was not placed in the compartment where the work was actually being carried out.
The Court concluded that these “omissions were quite major omissions and the steps that could have been taken are reasonably obvious and could easily have avoided this incident”.
Aimex were fined $316,434.12. Importantly, this sum included a 10% deduction on account of their good incident track record and similar deductions for remorse and remedial actions taken.
The cover-up
Unknown at the time, the exact same incident had occurred a week earlier – except this employee recognised the danger and immediately left the area without injury.
An incident report was subsequently completed by William, the health and safety officer at the time.. Although he raised this with his brother, Steven, the Managing Director, it was never addressed with staff in daily meetings. No further action was taken to mitigate the risk – enabling the same danger to remain.
This neglect was taken a step further, when the report was destroyed during the WorkSafe investigation of Brook’s incident. William denied any knowledge of prior incidents to WorkSafe, and Steven echoed this in meetings with his lawyers. Had this cover-up been known at the time, it is highly likely that Aimex would have faced harsher sanctions.
The initial incident was later discovered by a senior manager conducting a review of Brook’s incident. The manager submitted a Protected Disclosure Statement to WorkSafe. Police subsequently launched an investigation into the matter, concluding there had been a cover-up.
This harrowing incident emphasizes the importance of compliance with HSWA duties and obligations by the PCBU (person conducting a business or undertaking) and its officers and employees. This case is one of the few HSWA-related prosecutions to result in individual imprisonment in addition to company fines.
Simple steps can prevent serious incidents, and the importance of truthful communication with WorkSafe should not be downplayed. Ensuring the health and safety of workers and workplaces is paramount to the operation of a good business.
Further, where an incident occurs in the workplace, the PCBU must act appropriately to ensure that lessons are learned. This may include training, supervision, monitoring and undertaking disciplinary action (where appropriate) to ensure that such an incident is not repeated.
If you are wondering about risk management, the reasonably practicable steps you can take to make your workplace safe, and how to navigate communication with WorkSafe, contact the Employment Team at Lane Neave.
Special thanks to Law Clerk Olivia Kemp for her assistance in writing this article.
