Dotmar Epp Pty Ltd (Dotmar) engineers plastic
products at a factory in Dingley in Melbourne's suburbs. In so
doing, it utilises routers and lathes which are machine tools used
to assist in tasks such as cutting and drilling. Dotmar pleaded
guilty in the County Court to two charges under the Occupational
Health and Safety Act 2004 ('OHSA').
In essence, both charges concerned failures to provide or maintain
plant and systems of work that were, so far as reasonably
practicable, safe and without risks to health. Two of Dotmar's
employees were injured as a result of following company procedures
that sought to override many of the safety procedures required to
operate the machinery.
Following a plea, the judge sentenced Dotmar to pay a fine of
$300,000 on the first charge (incorrect use of the lathe), and
$75,000 on the second (misuse of the router), making for a total
penalty of $375,000. Dotmar appealed against the sentences imposed
by the County Court on 18 August 2014, contending that the
sentences were excessive.
The Victorian Supreme Court agreed with the sentencing
procedures of the County Court and dismissed the appeal of
In its submissions, Dotmar contended that the sentencing judge
erred in her assessment of the gravity of the offending and gave
too much weight to general deterrence. They also contended that the
judge failed to give adequate weight to the plea of guilty,
Dotmar's lack of prior convictions, delay, totality and
proportionality, and matters in mitigation. The Court noted that on
a proper analysis, the sentences could not be characterised as
manifestly excessive. Not only did the offending behaviour
embraced by the first charge take place over a ten month period,
but it occurred against a background of several years egregious
failure to adhere to proper safety procedures with respect to the
use of the lathe.
Counsel for the appellant also argued that, all other things
being equal, a breach of the OHSA
involving a death is always to be treated more seriously for
sentencing purposes than a breach that does not. However, this was
rejected by the Court as such an approach equated the gravity of
of a breach — that is, whether the breach resulted in death
or injury, or neither death nor injury — with the gravity or
seriousness of the breach.
The Court also provided a list of considerations in determining
the gravity or seriousness of the offence. This included the extent
of the departure from the duty owed, the extent of the risk to
health and safety thereby created, and the likelihood or risk of
particular harm resulting.
Lesson The case highlights the importance companies must place on
safeguarding their machinery and other systems at work so as to
eliminate or reduce the risk to workers of being seriously injured
or killed. The provision of adequate guarding is an elementary
safety feature of any machinery with moving parts and companies
that seek to override these procedures in favour of a "faster
and less-expensive" solution will face significant penalties
from the Court even without prior convictions and a lack of
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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