Citation: SafeWork NSW v QSR Pty Ltd [2019] NSWDC 67
Court: District Court of New South Wales
Date: 22 March 2019
Judge: Strathdee DCJ
Background
The defendant, QSR Pty Ltd, operated KFC franchise restaurants across New South Wales. In that capacity, it employed a 20-year-old food service team member whose duties included cleaning Collectramatic oil cookers and the overhead heating, ventilation and air-conditioning (HVAC) system in the kitchen.
On 17 November 2016, the worker was instructed to clean both the cookers and the HVAC canopy filters at a Coffs Harbour restaurant. He switched on the cookers after cleaning them, leaving their lids open as he had been instructed by a manager. He then climbed a step ladder, positioning himself above the cookers to clean the HVAC hood. During the task, a power blackout occurred. As he stepped down, his left foot slipped into a cook pot containing hot oil.
The worker suffered third-degree burns to his left leg and both hands. He required a skin graft at the Burns Unit of Royal North Shore Hospital and, at the time of his statement, continued to experience mobility issues. SafeWork NSW prosecuted QSR Pty Ltd for failing to comply with its duty as a person conducting a business or undertaking under the Work Health and Safety Act 2011 (the Act).
Legal Issues
- Whether QSR Pty Ltd failed to comply with its health and safety duty under s 19(1) of the Work Health and Safety Act 2011, thereby exposing the worker to a risk of death or serious injury contrary to s 32 of the Act
- What penalty was appropriate, having regard to the objective seriousness of the offence, aggravating and mitigating factors, and sentencing principles including deterrence, remorse, and rehabilitation
- Whether a 25% discount on the fine was warranted for an early guilty plea
Decision
QSR Pty Ltd pleaded guilty at the first available opportunity. The court accepted that plea and turned to consider the appropriate penalty, with the maximum available fine being $1,500,000.
The court identified the offender's failures as including: not ensuring cooker lids were closed and locked before the HVAC cleaning task commenced; not switching off and isolating cookers from their power source; not developing and enforcing an adequate safe work procedure for the task; and not providing sufficient information, training, and supervision. Although an HVAC cleaning manual existed with relevant safety instructions, and the worker had completed online training that addressed the same risks, that training and those instructions were not being followed in practice.
On objective seriousness, the court positioned the offence in the low-to-moderate range. The systems and manuals were in place, but compliance with them had not been enforced. The court noted the young ages of the supervisors (19 and 20 years old) and the worker himself (20 years old), the seriousness of the resulting injuries, and the slow and incomplete recovery described in the victim impact statement as an aggravating factor.
The court accepted several mitigating factors: the early guilty plea, demonstrated remorse (including the CEO attending the restaurant after the incident and the company maintaining contact with the worker and his family beyond workers' compensation obligations), and significant post-incident remedial steps. The court also accepted that the offender was a good corporate citizen with good prospects of rehabilitation. An appropriate pre-discount fine of $80,000 was set, reduced by 25% to $60,000 to reflect the early plea.
Orders Made
- QSR Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011
- Fine of $60,000 imposed (reduced from $80,000 by 25% for the early guilty plea)
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor (SafeWork NSW)
- Offender to pay the prosecutor's costs as agreed or assessed
Key Takeaways
- A conviction under s 32 of the Work Health and Safety Act 2011 does not require that the relevant harm actually occurred; exposure of a worker to a risk of death or serious injury is sufficient, though the materialisation of that risk is an aggravating factor in sentencing.
- The District Court treated the existence of written safety manuals and online training as insufficient to discharge the duty where the employer had not enforced compliance with those systems in practice.
- An early guilty plea at the first available opportunity attracted a 25% reduction on the fine, consistent with ss 21A(3)(k) and 22 of the Crimes (Sentencing Procedure) Act 1999.
- Post-incident conduct, including remediation steps, contact with the injured worker, and financial support beyond statutory obligations, was accepted as evidence of genuine remorse and good prospects of rehabilitation, both of which moderated the penalty.
- At $60,000 against a maximum of $1,500,000, the fine reflected a finding of low-to-moderate objective seriousness, influenced by the presence (if not enforcement) of existing safety systems and the relative inexperience of those in supervisory roles at the time of the incident.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 8, 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), s 122(2)
Cases
- Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 29
- Muldrock v The Queen [2011] HCA 39
- R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No 5) [2009] NSWSC 432
- Baumer v R (1998) 166 CLR 51