Defence Department convicted, fined following worker’s death

The Department of Defence has been convicted and fined for allegedly failing to manage psychosocial risks relating to the death of a worker, the first penalty of its kind for a Commonwealth employer.

Defence pleaded guilty to a single charge under section 33 of the Commonwealth Work Health and Safety Act (WHS Act), admitting it did not take reasonably practicable measures to eliminate or minimise the health and safety risks to a Royal Australian Air Force technician.

The 34-year-old worker took his own life while on duty at RAAF Base Williamtown near Newcastle, NSW, on 28 July 2020.

This is the first time a Commonwealth employer has been convicted of failing to manage psychosocial risks under federal work health and safety laws.

In the NSW Local Court late last year, Magistrate Brett Thomas convicted Defence and fined the department $188,000.

Magistrate Thomas also made an adverse publicity order, with details to be determined. Adverse publicity orders are available under section 236 of the WHS Act and can require an offender to publicise the offence, its consequences and the penalty imposed.

Defence breached its primary health and safety duty under section 19(1) of the WHS Act by failing to provide the necessary training for supervisors involved in the use of the draft work plan procedure used as a performance management tool.

The worker displayed increasing signs of distress and ill health during the performance management process.

Risk controls available to Defence included training supervisors to understand how a work plan may be a psychosocial hazard, identify psychosocial risks associated with workers subject to performance management through work plans, and eliminate or minimise psychosocial risks arising from work plans, including when to refer a worker for medical assessment and suspend the performance management process.

Comcare chief executive officer Colin Radford said the worker was subjected to four separate work plans over a six-month period.

“Comcare’s investigation found that at no point during this process did the worker’s supervisors refer him for support, place him on leave, or take any other steps to relieve the stress and pressure he clearly felt,” Radford said.

“The risks were obvious and known to Defence through existing policies and guidelines. These policies can only ever mitigate risk if they are applied and followed in practice, and if they are supported by training those responsible for implementing them.

“The investigation found Defence knew the worker was not coping and that he was also experiencing personal issues. The serious and foreseeable risks required a proactive approach to work health and safety that the department failed to deliver.”

The maximum penalty available to the court was $500,000 for a category 3 criminal offence under the WHS Act. The matter was prosecuted by the Commonwealth Director of Public Prosecutions.

Editor’s note: This story first appeared on HR Leader’s sister brand, Defence Connect.