Citation: SafeWork NSW v Grey Colt Pty Ltd [2019] NSWDC 68
Court: District Court of New South Wales
Date: 22 March 2019
Judge: Strathdee DCJ
Background
Grey Colt Pty Ltd operated a hotel and restaurant in Queanbeyan, New South Wales. In April 2016, a 17-year-old student named Connor McIntyre began work experience in the kitchen as part of a school arrangement, before being employed as a casual kitchen hand. His duties included dishwashing, food preparation, and cleaning the kitchen floor.
The kitchen stored several hazardous alkaline cleaning chemicals in 15-litre plastic containers under a bench near McIntyre's workstation. On 1 July 2016, McIntyre came into contact with one or more of those chemicals while cleaning the kitchen floor and suffered third-degree burns to both feet, ultimately requiring a skin graft. The company failed both to take reasonably practicable steps to protect workers from chemical exposure and to notify SafeWork NSW of the incident immediately upon becoming aware of it.
Grey Colt pleaded guilty to two charges: a Category 2 offence under section 32 of the Work Health and Safety Act 2011 (WHS Act) for failing to ensure the health and safety of a worker, and a separate offence under section 38 for failing to report the notifiable incident. The matter came before the District Court for sentencing.
Legal Issues
- Whether the offender discharged its duty under section 19(1) of the WHS Act to ensure, so far as reasonably practicable, the health and safety of workers
- What objective seriousness should attach to the section 32 offence given the multiple identified failures
- What weight should be given to mitigating factors, including an early guilty plea, contrition, remorse, and the offender's prior character as a corporate citizen
- What aggravating factors arose from the severity of McIntyre's injuries and their ongoing impact
- What penalty was proportionate across both offences, having regard to the totality principle and the available maximum penalties
Decision
The court convicted Grey Colt of both offences. On the section 32 charge, the court identified an extensive list of failures: the company did not provide chemical-resistant footwear, had no spill containment system, had no emergency plan for chemical exposure, did not make Safety Data Sheets accessible, and provided no training or adequate supervision to workers handling hazardous chemicals. These failures collectively exposed McIntyre to a foreseeable and serious risk of injury.
On the notification offence under section 38, the court accepted that McDonald (the sole director) and his wife genuinely, though wrongly, believed that notifying their workers' compensation broker was sufficient. The court noted they had proactively investigated the cause of the injury after the event, but found that did not excuse the failure to report directly to SafeWork NSW. McDonald acknowledged he should have known of that obligation.
In mitigation, the court accepted that Grey Colt had shown genuine contrition and remorse, employed more than 30 staff, and that McDonald had become a more vigilant employer as a result of the incident. The early guilty plea attracted a 25% discount on both fines. The court also had regard to McIntyre's Victim Impact Statement, which described severe burns, a slow and painful recovery, and ongoing physical and psychological consequences.
Before applying the discount, the court assessed the appropriate fine for the section 32 offence at $30,000 (against a maximum of $1,500,000) and $2,000 for the section 38 offence (against a maximum of $50,000). After the 25% plea discount, fines of $22,500 and $1,500 were imposed respectively.
Orders Made
- Grey Colt Pty Ltd convicted of both offences
- Fine of $22,500 imposed for the section 32 offence (reduced from $30,000 by 25% for the guilty plea)
- Fine of $1,500 imposed for the section 38 offence (reduced from $2,000 by 25% for the guilty plea)
- Pursuant to section 122(2) of the Fines Act 1996, 50% of each fine directed to be paid to the prosecutor (SafeWork NSW)
- Offender to pay agreed prosecution costs of $35,000
Key Takeaways
- A 25% sentencing discount applied where a corporate offender entered a guilty plea at the first available opportunity, consistent with established NSW sentencing principles under the Crimes (Sentencing Procedure) Act 1999.
- Under the WHS Act, an employer's duty to ensure worker health and safety encompasses providing appropriate personal protective equipment, accessible Safety Data Sheets, spill containment systems, emergency plans, and adequate training. Failures across all of these areas were individually identified as contributing to the contravention.
- The section 38 notification duty is a standalone criminal obligation separate from any workers' compensation reporting process. Notifying an insurance broker does not satisfy the requirement to immediately notify SafeWork NSW of a notifiable incident.
- Genuine contrition, a proactive post-incident investigation by the offender, and a clean prior record as a corporate citizen were treated as mitigating factors, though they did not displace the need for a conviction and financial penalty.
- The fines imposed, while well below the statutory maximums, reflected the totality principle and the individual circumstances of the offender, including that it was a small business operating a single licensed premises.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 7, 19(1), 32, 38
- Work Health and Safety Regulation 2011 (NSW), cl 357
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Baumer v R (1998) 166 CLR 51
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39
- 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
- R v Wilkinson (No. 5) [2009] NSWSC 432