A recent health and safety prosecution in New South Wales has
resulted in a total penalty of over half a million dollars. The new
Health and Safety at Work Act 2015 (HSW Act) means
that this sort of penalty could be on the way in New Zealand.
The case in Australia involved the prosecution of both a
company, Romanous Contractors Pty Ltd, and its director, John
Romanous, in his capacity as an officer of the company. The
prosecution was brought under the legislation on which our HSW Act
is based, and has both the same requirements and the same
penalties. In relation to these charges, the maximum fine for the
company was $1.5 million, and for the officer was $300,000.
Romanous Contractors was the principal contractor on a
multi-level retail construction. The concrete pour for the second
level had taken place, with a void left in part of the slab to
accommodate a smoke vent. A sub-contractor bricklayer, Mr Czyz, was
driving a forklift on the slab. No-one witnessed the fall, but Mr
Czyz was found directly beneath the penetration on the concrete
floor, 5.1 metres below. He sustained fatal head injuries and died
at the scene.
Investigators discovered that there was "a plank of wood
positioned across the penetration with a piece of plywood resting
on top partially covering the penetration. Neither had been nailed
down or otherwise secured." They also found that
"Romanous Contractors did not inform workers at the premises
of the existence of penetrations on the second floor and a number
of workers were unaware of the penetrations prior to the
The Judge decided that the "risk presented by an
unprotected penetration was obvious." He noted that there were
"very simple measures available to minimise the risk, and
these measures were known by Mr Romanous. Had Mr Romanous checked
that the plywood had been secured by Mr Adams, he would have
discovered that the penetration was not adequately guarded and
remedial action could have been taken." As a result, the
"conduct of the offenders fell well short of that expected
from responsible persons involved in high risk constriction [sic]
When assessing the penalty to impose, the Judge noted that as
well as general deterrence, and despite the guilty plea, there was
need for specific deterrence in this case:
"The offenders have not accepted responsibility
for their failings that led to Mr Czyz's death. It is likely
that Romanous Contractors will be wound up at the conclusion of
these proceedings and will not operate a business involving high
risk construction activity in the future. It is possible that Mr
Romanous will return to building work including high-risk
construction activity in the future."
The Judge therefore decided that in respect of both Romanous
Contractors and Mr Romanous, the case "calls for the
imposition of a substantial fine as a result of the objective
seriousness of the offence, the need for specific and general
deterrence and the need for denunciation of the conduct". He
fined Romanous Contractors $425,000 and Mr Romanous $85,500.
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Where conduct destroys necessary trust and confidence in the employment relationship, dismissal may be appropriate.
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