Director of Public Prosecutions v Dotmar Epp Pty Ltd
[2014] VCC 1326
•18 August 2014
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IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-12-02069
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOTMAR EPP PTY LTD (ACN 065 473 681) |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 August 2014 | |
CASE MAY BE CITED AS: | DPP v Dotmar Epp Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1326 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R Shann | Office of Public Prosecutions |
| For the Accused | Mr A.D. Halse |
HER HONOUR:
1 Dotmar Epp Pty Ltd (“Dotmar”) has pleaded guilty to two charges of being an employer failing to provide and maintain a safe working environment. The maximum penalty in respect of each of the charges is 9,000 penalty units. Given the dates of the offences the maximum penalty for each charge is a fine of $1,051,380.
2 The circumstances of the offending to which the company has pleaded guilty are set out in the Particulars to each charge and in the amended Summary of Prosecution Opening (Exhibit K). Dotmar operates a factory in Dingley in which it engineers plastic products for various customers. Charge 1 concerns the operation of a TUR MN CNC “Fat Boy” lathe which had been purchased in 2003.
3 Charge 1 is in the following terms. “The Director of Public Prosecutions charges that DOTMAR EPP PTY LTD (ACN 065 473 681) at Dingley in Victoria, between the 12th day of October 2009 and the 19th day of August 2010, being an employer failed, so far as was reasonably practicable, to provide for its employees a working environment that was safe and without risks to health in that it failed to provide or maintain plant and systems of work that were, so far as was reasonably practicable, safe and without risks to health by:
Particulars
a) requiring or allowing Jason Ulahannan and Sanesh Sebastian to operate the TUR MN CNC ‘Fat Boy’ lathe (‘the lathe’) contrary to its manufacturer’s instructions;
b) requiring or allowing Jason Ulahannan and Sanesh Sebastian to operate the lathe without ensuring that the interlocked guard designed to prevent operator access to dangerous parts of the machine was not bypassed.
c) requiring or allowing Jason Ulahannan and Sanesh Sebastian to reach into the lathe while.
i. the lathe was operating; and
ii. the interlocked guards were bypassed;
d) failing to ensure that its maintenance fitters checked on a monthly basis that the guards on the lathe were working and in place as required by its:
i. ‘Equipment Maintenance Procedure’ for the lathe (undated Depositions p. 1968); and
ii. ‘Machine Shop Work Instruction: CNC LATHE 1H FAT’ (WI No. 044), first issued May 2006, revised 29.03.09.
e) failing to comply with regulation 3.5.25(4)(a) of the Occupational Health and Safety Regulations 2007 (Vic) in that it used guarding as a measure to control risk in relation to the lathe but failed to ensure that by-passing or disabling the guard, whether deliberately or by accident, was as difficult as possible.
f) failing to implement a system of work such as the use of a compressed air gun and basket to catch plugs so that the lathe could be operated with the interlocked guards performing the function for which they were designed.
g) using a lower order safety control, namely instructing its employees to exercise care when they operated the lathe, when a higher order control, namely the use of interlocked guards, was reasonably practicable.
h) failing to instruct and train its employees, including Jason Ulahannan and Sanesh Sebastian, not to operate the lathe with the interlocked guard doors open.
i) failing to instruct its:
i. maintenance fitters to check on a monthly basis that the guards on the lathe were working and in place as required by its ‘Equipment Maintenance Procedure’ for the lathe (undated Depositions p. 1968); and
ii. ‘Machine Shop Work Instruction: CNC LATHE 1H FAT’ (WI No. 044) first issued May 2006, revised 29.03.09.
j) failing to instruct the operators of the lathe, including Jason Ulahannan and Sanesh Sebastian, to check that all of the lathe’s guards were in place and operated correctly prior to using the lathe as required by its ‘Machine Shop Work Instruction: CNC LATHE 1H FAT’ (WI No. 044) first issued May 2006, revised 29.03.09.
k) failing to supervise its maintenance fitters and lathe operators to ensure their compliance with the procedure and instruction referred to in particular (i) above.”
4 The lathe was designed and manufactured with a guard or doors around it to prevent access to the rotating machine tool. The guard had an interlock switch so that the machine could not operate if the doors were open. In or before 2004, a leading hand employed by Dotmar over-rode the interlock. This allowed the lathe to continue to operate with the guard doors open. The operators were then able to put their hands near the moving parts while they were spinning at high speed. The leading hand advised Mr Simon Daniell, Dotmar’s production manager, that he had done this.
5 On 12 October 2009 the lathe was operated by a Dotmar employee, Mr Jason Ulahannan. Mr Ulahannan was working on a job which required a polypropylene rod to be machined into washers. As the washers were machined, plastic shavings or swarf were getting tangled and damaged the polypropylene if they were not pulled free. The system of work used at the time for machining polypropylene rods in this lathe was for the operators to use their hands to pull the swarf from the rod while the machine was in operation. This meant that the operators would have their hands near the parting-off tool and rotating rod.
6 This method of work gives rise to a risk that the operator’s hand will become nipped or entangled in the moving chuck and parting tool. Even a skilled worker may inadvertently slip or misjudge the distance near the hazard point resulting in serious injury or even death.
7 Dotmar’s operating instructions included a direction not to use the machine unless all the guards were in place and adjusted correctly. Despite this, when Mr Ulahannan was trained on the lathe by Mr Sanesh Sebastian, Mr Sebastian operated the lathe with the guard doors open and put his hand into the danger area of the machine to remove swarf. Mr Ulahannan followed this method when he first started using the lathe. At no time during the approximately 12 months that he operated the lathe prior to his accident, was Mr Ulahannan told to make sure the guard doors were closed.
8 At about 11.00am on 12 October 2009, Mr Ulahannan was trying to pull swarf from the rod when his right index finger became caught between the parting tool and the chuck. The parting tool crushed the tip of his finger against the chuck causing a number of lacerations and the loss of the top of half of his nail. Mr Ulahannan received treatment and was on altered duties for at least two weeks.
9 The prosecution case is put on the basis that allowing employees to use the lathe with the guard door open gave rise to a risk to health and safety and it was reasonably practicable for Dotmar to have eliminated or alternatively reduced, so far as was reasonably practicable, that risk by making sure that the door was closed. The prosecution alleges that the hazards which arose from Dotmar’s failure were nip and tuck entanglement from the rotating chuck. The likelihood of the hazard or risk eventuating was high and the degree of harm that would result if the hazard eventuated was serious injury.
10 Ultimately, in 2010 to 2011, Dotmar introduced an air gun to blow the swarf away from the product and changed the machine program so that the rod moved backwards and forwards, making the swarf fall off. The cost of implementing these methods for making the swarf fall rather than having someone use their hand to remove it was estimated to be not more than $3,000.
11 While it is not necessary to prove that the employer knew that it could eliminate an identified risk in a particular way, the prosecution case is put on the basis that Dotmar did know that the interlock on the lathe door should not be by-passed. The prosecution relies on a history of difficulties with this machine prior to the incident involving Mr Ulahannan. The prosecution asserts that Dotmar was specifically put on notice regarding the dangerousness of leaving the interlock on the guard doors by-passed by an event which occurred in 2006.
12 In April 2006, a WorkSafe inspector issued an improvement notice to the company after having seen that the guard on the lathe had been by-passed. The inspector directed Dotmar to remedy the contravention and suggestions on how to achieve compliance were given. In May 2006, the inspector returned and observed that the door had been interlocked. He deemed the improvement notice had been complied with. Within two months of the inspector’s visit, the lathe’s interlock had been by-passed by Dotmar again. Dotmar had decided to allow the lathe to be used while unguarded for certain tasks with the door open, but to ensure that only trained staff operated the machine.
13 According to Mr Daniell, the lathe had been operated in an open position from at least 2004 onwards, apart from the one to two months after the 2006 WorkSafe visit. Mr Daniell knew the lathe was designed to operate with the guard door closed. He was aware that a possible consequence of using the lathe with the guard door open would be that the operator could become entangled in the lathe causing serious injury or death. He says that Dotmar did not believe they could deal with issues such as swarf build-up without by-passing the guard doors.
14 A risk assessment on the lathe in March 2009 carried out by Dotmar identified a hazard of being cut, crushed, burnt or entangled when removing swarf while the machine was in operation. The risk assessment identified the probability of this occurring as likely and the consequences moderate and the risk overall was high. Ways were identified to reduce the risk, being an automatic chuck moving the tool back before moving the chuck, ensure only trained operators use the machine and wearing close fitting clothing. Documents stated that obtaining an automatic chuck would be a long term possibility.
15 The prosecution case is put on the basis that guarding was available and reasonably practicable for use on the lathe and therefore the appropriate manner to control the risk. After Mr Ulahannan’s injury in 2009, there were discussions among senior management about safety on the lathe. Mr Daniell provided pliers to machine operators to remove the swarf and the interlock for the doors remained by-passed. There were potential hazards associated with using the pliers and the operators stopped using the pliers and went back to reaching in with their hands. Mr Daniell was informed of this.
16 On 19 August 2010, Mr Sebastian was working on a job machining plastic rod into plugs. For this task, the operator was required to catch the plug so it would not drop from the rod and be damaged. This involved the operator putting his hand in the danger area of the lathe near the parting-off tool and rotating rod. Mr Sebastian had been taught to operate the lathe with the interlock by-passed. At about 8.00pm on the day in question, Mr Sebastian had his hand in the danger area of the lathe and was attempting to catch a plug when his right thumb was crushed between the chuck and parting off tool. As a result of the rotation of the chuck, Mr Sebastian’s thumb received a number of lacerations which resulted in the loss of his thumb nail. His thumb was broken and he required surgery to insert a wire. He received stitches and was off work for seven weeks.
17 The prosecution case is put on the basis that the injury caused to Mr Ulahannan in 2009 put Dotmar squarely on notice, over and above the event in 2006, that the system of work that had developed whereby the machine was used with the interlock by-passed was highly dangerous. They knew or ought to have known that the machine should only be operated with the guard doors closed.
18 In August 2010, another WorkSafe inspector attended and issued an improvement notice which was deemed complied with in September 2010. After the second incident and in response to a specific company request, Mr Sebastian and Mr Ulahannan worked out how to use the lathe without the interlock being by-passed. A compressed air nozzle was inserted behind the chuck and the machine program altered. These alterations allowed the same tasks to be completed on the lathe but with the doors closed. A bucket was apparently used to collect the plugs. The process is somewhat slower and about 20 per cent of products are damaged but the risk of injury to operators is eliminated.
19 A further interlock was fitted to the doors which meant to operate the lathe all interlocks had to be in place. There have been no further incidents on the lathe since that time.
20 The prosecution position is that the evidence of changes made subsequent to 19 August 2010 is evidence that it was reasonably practicable to operate the lathe with the guard door closed and without the interlock being by-passed at all relevant times in 2009 and 2010.
21 A victim impact statement was received from Mr Sebastian and tendered as Exhibit H. In his victim impact statement, Mr Sebastian speaks of his upset when he looks at his injured thumb. He says it stops him doing some simple daily activities, and he cannot pick up small items. He says this affects him both at work and at home.
22 Charge 2 concerns the operation of a table router at the same premises. Charge 2 is in the following terms. “The Director of Public Prosecutions charges that DOTMAR EPP PTY LTD (ACN 065 473 681) at Dingley in Victoria on the 18th day of March 2010, being an employer, failed, so far as was reasonably practicable, to provide for its employees a working environment that was safe and without risks to health in that it failed to provide or maintain plant and systems of work that were, so far as was reasonably practicable, safe and without risks to health in that:
Particulars
1. It failed to ensure that the risk of injury from contact with the router table of the Wadkin CNC Router (“the router”) was adequately controlled by, for example:
(a) physically restricting access to the space between the router frame and table during operation; or
(b) by installing a presence sensing device that prevented the machine operating if someone was within that area.
2. It failed to properly consider hazards to health and safety associated with operating the router including the risk of contact with the router causing serious injury or death and provide controls to eliminate or, where not practicable, minimize those risks such as by implementing a job safety analysis or other risk assessment mechanism which ensured:
(a) that employees not stand between the router frame and moving table while the machine was in operation;
(b) that employees not tape holes in the plastic while the machine was in operation.
3. It failed to provide adequate information, instruction training and supervision to its employees in relation to the task of operating the router as was necessary to enable them to perform their work in a way that was safe and without risks to health by failing to:
(a) Adequately train or instruct them:
(i) not to place tape over holes in the plastic while the machine was in operation; and
(ii) not to stand between the router frame and the moving table while the machine was in operation.
(b) Adequately supervise them to ensure they did not place tape over holes in the plastic while the machine was in operation.”
23 On 18 March 2010, Mr Robert Cummins, a Dotmar employee, was operating the router, drilling holes into plastic product. The router was used to cut and drill holes into plastic products. The plastic being drilled was held on the router table by pressure suction. The router table would move under the router head for drilling and/or cutting. The suction to the table was lost if the holes were drilled all the way through and as a result the general work practice was to stop short of perforating the plastic and to drill out the holes completely after the plastic was taken off the router. Some employees, in order to save time, allowed the holes to be drilled and placed tape over the plastic without stopping the machine. Taping the holes meant that the suction would not be lost.
24 Mr Cummins was injured when he moved behind the machine to tape holes when the machine was operating. The Incident Report (Exhibit J) says Mr Cummins leaned over the machine with his leg up to the side and that he lost his balance when the table moved and he dropped his leg into the area between the table and the frame. Mr Cummins received lacerations to his right leg as a result of his leg becoming trapped between the moving table and the frame of the router. He could not reach the emergency stop button, which had to be activated by another employee. Mr Cummins was hospitalised for three days, and required six weeks off work due to his injuries.
25 Prior to the incident, Mr Cummins had raised a concern with Dotmar’s OHS manager about the risk of being bumped by the router table.
26 It is the prosecution case that at the time of the incident a “Plant Hazard Checklist” applying to the router identified the risk of being trapped but provided no controls to eliminate or otherwise control the risk. A review in respect of the router’s risk assessment was due to be completed on 16 February 2009. The prosecution says that this suggests the company was on notice that the router’s safety documentation was not up to date.
27 The prosecution case is that the likelihood of injury from the practice of placing tape over the holes is considered very likely if the machine is not stopped and that the degree of harm, should a person be trapped, includes death.
28 After Mr Cummins was injured, Dotmar completed an internal investigation report. An improvement notice was issued by WorkSafe which was deemed to be complied with on 3 June 2010 when it was confirmed that Dotmar had installed a light-guard and a sensor device. The company also updated its work instructions after the incident to direct machine operators never to enter the exclusion zone while a machine was in cycle and to turn off the machine before taping up any holes. The cost of implementing a basic two-beam light-guard is not more than $4,000.
29 Dotmar does not have any prior or subsequent convictions or findings of guilt.
30 Dotmar pleaded guilty on the first day of the trial. There had been a three-day contested committal, during which each of the injured workers was cross-examined. The plea hearing commenced but was adjourned due to a lack of agreement about certain matters the defence wished to raise in mitigation. After discussion between the parties that matter was resolved. The prosecution’s Outline on Sentencing (amended 28 January 2014 and 25 July 2014) was tendered as Exhibit L. The Defence Reply, dated 29 July 2014, was tendered as Exhibit 3. Each of these documents includes changes to the party’s position since the plea commenced earlier in the year.
31 In submissions on sentence the prosecution particularly relied on two decisions of the Court of Appeal, being DPP v Amcor Packaging Australia Pty Ltd[1] and DPP v Coates Hire Operations Pty Ltd.[2] At page 565 in Amcor the Court of Appeal said:
“When determining the appropriate penalty in a case of the breach of a statutory duty imposed for the purpose of protecting the lives and wellbeing of those who may be affected by the breach, the foreseeable potential consequences must be taken into account as it is the avoidance of those consequences which, when considering the objective seriousness of the offence, constitutes the raison d’etre for the establishment of the legislated regime in the first place. To a substantial extent the seriousness of a breach must be assessed by reference to those potential consequences and the measure of evidenced disregard concerning the safety of employees in the circumstances.”
[1](2005) 11 VR 557
[2](2012) 36 VR 361
32 The prosecutor submitted that where an employer had disregarded the safety of its employees, rather than having tried but failed to meet the statutory duty of care, then this may put the case into the category of “very high culpability”, relying on DPP v Coates Hire Operations at paragraphs [64]–[68]. It was submitted that the culpability of Dotmar in respect of Charge 1 was very high because the lathe was designed to be operated in its fully automated mode only with the guard doors closed thus making the machine considerably safer than a manual lathe, the interlock guard was deliberately by-passed since at least 2006, the guard was by-passed for reasons of production, Dotmar, through its production manager, was on notice from 2006 onwards that the by-passing was illegal and dangerous to its employees, Dotmar’s occupational health and safety coordinator was also aware of the contravention as the risk assessment on 11 March 2009 had identified this risk of injury, the injury to Mr Ulahannan made the danger obvious and, despite that, the company continued to require the lathe to be used in an unguarded state for a further 10 months.
33 The prosecutor submitted that the company’s culpability in respect of Charge 2 was lower but was still significant, because the risk of being trapped had been identified in 2004 but nothing had been done to eliminate or control the risk, Dotmar failed to keep the safety documents for the router up to date until after Mr Cummins was injured, even though it was aware the review date was past, Dotmar’s occupational health and safety coordinator was told by Mr Cummins of the risk of being bumped but did not address the risk and a number of employees were openly engaged in the dangerous work practice of taping up holes while the router was moving.
34 The prosecutor also submitted that measures that could have been used to control the risks involved were not expensive. The prosecutor also submitted that where the potential risk was that someone would be seriously injured, then the sentencing principle of general deterrence would normally assume considerable significance. The prosecutor again relied on principles set out in in Amcor and Coates Hire.
35 The prosecutor also submitted that the court must have regard to the injuries sustained by each of the injured workers in application of s5(2)(db) of the Sentencing Act 1991.
36 The prosecutor submitted that the offence in Charge 2 was a more common type of breach, whereas the offence in Charge 1 was of a different nature. The prosecutor addressed some similarities and differences between the offending in Charge 1 and the situation in Coates. The prosecutor submitted that in respect of Charge 1 there was very high culpability and that there was a “disregard of employee safety” and that there had been an exposure to risk over a lengthy period and not just in an isolated situation.
37 The prosecutor submitted that there was little evidence of remorse on the part of the defendant company. The prosecutor also referred to certain statements in the depositions. It appears from those statements that there was a view within the company during the period covered by Charge 1 that the relevant tasks could not be done with the guard doors closed.
38 The prosecutor agreed that the company had been cooperative in the investigation and that there had been a degree of candour. The prosecutor accepted there had been improvements subsequently, but submitted that it should be taken into account the company had only acted after the second incident in respect of the lathe. The prosecutor submitted that there should be separate penalties imposed in respect of each of the offences and that totality and proportionality ought to be taken into account.
39 In the Defence Reply, a number of detailed responses are set out, not all of which were addressed in oral submissions. Amongst the matters raised in the Defence Reply are statements that the lathe was designed for milling and cutting of metal and the adapted process of using it for plastic was considered safe without the need of the design guards on the “few jobs performed without them in place”. There are a number of other statements in the Defence Reply which suggested that the lathe was only used in an unguarded state on a very limited number of occasions. I am satisfied beyond reasonable doubt on the basis of the submissions put by the prosecution, which were tendered as Exhibit N, that it was not an infrequent practice to use the lathe with the interlocks deliberately by-passed and that the lathe was regularly used with the door open and the interlocks deliberately by-passed.
40 The Defence Reply does go on to accept that whilst the lathe could operate with the doors open, it was designed to be operated in its fully automatic mode only with the doors closed and that should have been the circumstance at the time of the offence. The Defence Reply sets out reasons for the failure to perceive the problem and refers to Mr Ulahannan being a highly trained and experienced operator prior to his arrival at Dotmar.
41 The Defence Reply concedes that risks remained of the operator’s hand becoming nipped or entangled in the moving chuck and parting tool and says that Dotmar was conscious of these risks as a “residual risk” but also from the intervention of the Worksafe inspector and the Dotmar OHS coordinator. The Defence Reply says that the company knew that operating lathes and routers was dangerous but that is not what the offence is constituted by. It says, and I accept, that the offence involves failing to keep the workplace as safe as reasonably practicable.
42 The Defence Reply says:
“It did not require the attendance of an inspector or the fact of a prior incident to bring the fact of danger to the company’s attention. The company was seized of the knowledge and their endeavours to remedy at the time failed to cure the problems; but not for want of trying to make the workplace safe.”
It goes on to say -
“Accordingly it was a failure of imagination, initiative and effort rather than a disregard for the safety of the employees.”
43 The Defence Reply says that neither the inspector nor the guidance material provided the solution to the issue in question and that the inspector did not suggest the air hose solution.
44 In respect of Charge 2, the Defence Reply asserted that the risk of bumping was low and that the speed of operation of the router table did not mandate a light curtain but that equipment administrative controls might be sufficient. The Defence Reply says that there was no evidence to suggest there was a taping of holes in 2004 and that the company was in the process of trying to review and improve its documentation, systems and processes.
45 In oral submissions defence counsel submitted that in this type of situation the holding of a committal ought be seen to be in a different context compared to other types of criminal offending. The defence counsel said that there had been a benefit to all from the committal.
46 Defence counsel sought to distinguish this situation from that in Coates and submitted that in Coates there was no valid reason for not attaching the winch, which was what had not been done, whereas in this case, the company was mindful of the difficulties of execution in the two jobs with the guard open and attempts were made to reach a solution. The recommendation as to the use of pliers was an example of the company’s consciousness of the problem and that it was grappling with it. Defence counsel submitted that the company was not disregarding their responsibility, but were well aware of it, and grappling with the issues. Ultimately the result was produced of the use of the air gun.
47 Defence counsel referred to a matter which had been addressed in the written response, which was that this situation was operating with the benefit of hindsight and that it should be taken into account that efforts had been made and that skilled employees had been involved, as had the occupational health and safety officer. Defence counsel submitted that this demonstrated that the company had not disregarded the situation with the lathe. Defence counsel referred to the efforts to deal with the situation, including the use of pliers, the trial of an air gun and the suggestion that there be a different programming to allow the swarf to spin off. All of these attempts failed.
48 Defence counsel submitted that it should be taken into account in mitigation that the company had no prior criminal history and had no matters pending, and that there had been a plea of guilty, albeit late.
49 In respect of Charge 2, defence counsel submitted that there had been extraordinary circumstances which had now been obviated by the use of a light curtain.
50 The defence counsel also referred to a number of other safety measures that had been taken by the company. These included a number of general measures to improve safety on the site.
51 The question of the company’s financial circumstances was raised by me early in the proceedings in the context of a comment by me as to what documentation might be required. Defence counsel indicated that there would be no issue as to the company’s capacity to pay any fine imposed.
52 The seriousness of these offences must be considered in the light of the principles set out in Amcor. I also bear in mind what was said by Harper J. in Holmes v R.E. Spence[3]. His Honour said “The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them, not with the benefit of hindsight or the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them. Remembering also that, in the main, such a responsibility can only be discharged by taking an active, imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality.”
[3] (1992) 5 VIR 119 at 123
53 The offending covered by Charge 1 is clearly more serious than the offending in Charge 2. This is not a situation of applying hindsight or the wisdom of Solomon. The company clearly knew of the objectively obvious risks associated with the use of the lathe with the guard doors open and with the operators putting their hands near moving parts. Despite that knowledge the company did nothing effective to reduce or eliminate the risk. There was an effective and inexpensive solution which was ultimately developed by the very employees who had operated the lathe and been injured. There is nothing to suggest that they could not have come up with this solution earlier if the company had pressed the matter. The company was complacent and disregarded employee’s safety in allowing the interlock to be by-passed again after the inspection and improvement notice in 2006. The company continued to allow Mr Ulahannan and Mr Sebastian to operate the machine in a dangerous manner.
54 It appears that consideration of reducing the risk did occur in the context of the risk assessment in March 2009. There was no serious effort to implement the suggested solutions. Once Mr Ulahannan was injured the best that could be devised was the dangerous use of pliers. Again there was no serious effort to deal with the safety issue. The assumption that the work could only be carried out with the doors open went unchallenged. It required the further injury to Mr Sebastian to ensure that employees’ safety was given proper consideration.
55 Far from taking an ‘active, imaginative and flexible approach to potential dangers’ the company actively allowed a dangerous situation to continue, knowing what the risks were and without putting any human or financial resources into coming up with a practical solution. During the period covered by Charge 1, the company disregarded the risk to its employees in the interests of continuing the operation of the machine.
56 The conduct of the company in the charged period constituted a very serious breach of its obligations. In this case the company wrongly disregarded its own written procedures but did make some, albeit inadequate, attempts to deal with the dangers of operating the lathe with the doors open. I consider that the breach in this case was less serious than the breaches in Coates Hire where that company actively supported multiple workers in contravening its own stated and specific safety policies in respect of the relevant task. I also consider there was less risk in this case of death or very serious injury. There was such a risk and that it is very fortunate that the injuries to Mr Ulahannan and Mr Sebastian were not worse. That two workers were injured is a matter that I take into account in sentencing.
57 The offending covered by Charge 2 is less serious but still involves a significant falling short in the company’s obligations to its employees. The risk of being trapped had been identified earlier but the specific risk of an employee becoming trapped by the machinery while taping the holes had not been identified. This specific risk became apparent when the incident occurred on the date charged. Effective and practical preventative measures were put into place. Those measures could have and should have been put into place earlier. There was a risk to employees moving behind the table area. Of even more concern is the failure to stop employees leaning over and taping holes while the table was moving. This was clearly a dangerous practice and should have been stopped.
58 General deterrence must be given very significant weight in sentencing to bring home to employers the importance of complying with their obligations under the occupational health and safety legislation. Dotmar has no prior history of this type of offending and has taken steps to ensure that safety measures are improved at the Dingley premises. Despite that, I consider specific deterrence needs to be given some weight in sentence. The background to these offences, the conduct of the committal proceeding and the late plea of guilty, together with the matters set out in the Defence Reply and in submissions, lead me to conclude that the company has limited remorse and that a sentence is required which serves to deter it from future complacency or inactivity in respect of employee safety issues.
59 I have taken into account in mitigation of sentence the plea of guilty which has had considerable utilitarian value. I have also taken into account in mitigation that the company co-operated in the investigation and provided candid information in respect of some matters. It is also to the company’s credit that it has taken steps to improve safety at the site.
60 In arriving at the individual sentences, I have taken into account the principles of totality and proportionality.
61 On Charge 1, the accused company is convicted and fined $300,000.
62 On Charge 2, the accused company is convicted and fined $75,000.
63 But for the pleas of guilty, I would have imposed a fine with conviction of $400,000 on Charge 1 and a fine with conviction of $100,000 on Charge 2.
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