WA’s First Imprisonment for Gross Negligence

industrial manslaughter, wa conviction, safety laws, whs act 2020

An Esperance business owner is the first person in Western Australia to receive a jail sentence for gross negligence.

Mark Withers pleaded guilty to gross negligence after the death of a worker and serious injuries of another in March 2020. This is one of the first cases since harsher penalties were introduced.

Mr Withers, the sole director of a shed building company MT Sheds, was sentenced to 8 months imprisonment, with an additional 18 month’s imprisonment suspended for 12 months. His company was fined $605,000 and he was personally fined $2,250.

The incident occurred when two workers employed by MT Sheds were installing the roof of a shed on a farm in Beaumont, March 2020. The wind caused a sheet from the pack of roof sheets they were installing to lift, causing the workers to fall off the roof. Jake Williams, 25 year old father of three, was killed by the 9 meter fall from the apex of the shed. Fraser Pinchin, his 21 year old co-worker, was injured from the 7 metre fall from the shed’s gutter and sustained multiple fractures.

The WorkSafe investigation into the incident found that neither of the workers was wearing safety harnesses or held the necessary high-risk work licences needed for the work they were performing. They also did not have the construction induction training certificate (white card) needed to perform construction work.

In this case, there was a failure to implement safety management systems and supervise safe work for an extended period of time, and the risk of this incident occurring was not low. Therefore, there was a knowing acceptance of the danger, and this risk had not been eliminated or minimised as far as reasonably practicable. Mr Withers had been working in the construction industry for 30 years, building sheds for 20 years, and was reasonably expected to know the safety requirements.

What are the implications for this for your business?

Firstly, it is important to be aware of the harsh consequences of violating work, health and safety laws. The maximum penalty for Industrial Manslaughter under the Work Health and Safety Act (2020) is 20 years imprisonment and a fine of $5 million for businesses.

This case also highlights the importance of having safety management systems and safe work procedures, not only to prevent incidents from occurring but also as evidence that as the business owner, you have done what was reasonably practicable to mitigate risk. In this case, Mr Withers lengthy experience in the construction industry suggests he would have been aware of the risks working at height but did not take necessary precautions to mitigate them. Experience in an industry does not supersede the need for a safety management system.

ProcessWorx has just finished developing a new Work Health and Safety Package that together with the support of our WHS Consultants will greatly assist farmers to meet their duty of care obligations. For more information on ProcessWorx services or to speak to one of the friendly team, phone 9316 9896, email enquiries@processworx.com.au

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Written by Danielle McNamee



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