Hazing of an apprentice results in criminal convictions and fines

For most people, it would be common sense that you simply cannot physically bully and threaten a colleague (including a subordinate). However, such behaviour still occurs.

Importantly, all workers have an obligation pursuant to the Work Health and Safety Act 2012 (SA) (WHS Act) to take reasonable care for their own health and safety and further, to ensure that their acts or omissions do not adversely affect the health and safety of other persons. There are significant penalties for workers and body corporates who fail to comply with their duties under the WHS Act, particularly if they do so recklessly. Such breaches may constitute criminal offences. In terms of reckless conduct, penalties can range from fines up to $3,000,000 or 5 years imprisonment, or both.

In the recent decisions from the South Australian Employment Tribunal (SAET) in the cases of Campbell v Chenoweth [2019] SAET 181 and Campbell v Rowe [2019] SAET 104 (the Decisions), the SAET ordered criminal convictions and imposed monetary fines for offences against the Work Health and Safety Act 2012 (SA) (WHS Act).

Mr Chenoweth and Mr Rowe were both convicted of criminal offences pursuant to the WHS Act and were imposed monetary fines for their conduct of $21,000 and $12,000, respectively, for conduct that included threatening to set a colleague’s clothes on fire.

Facts

Mr Chenoweth and Mr Rowe were both site supervisors working as employees of Tad-Mar Electrical Pty Ltd. Mr Austin Courtney (the Victim) was a 19 year old apprentice working under their supervision.

On 25 March 2017, the Victim was sitting at a table in the lunchroom by himself. Mr Chenoweth and Mr Rowe were sitting approximately two metres away from the Victim. Mr Chenoweth then proceeded, without reasonable excuse, to:

• Squirt flammable liquid onto the Victim’s boot;
• Use a cigarette lighter to ignite the flammable liquid on the Victim’s boot;
• Squirt more flammable liquid onto the Victim’s pants;
• Chase the Victim around the lunchroom threatening to ignite the flammable liquid on his pants;
• Squirt more flammable liquid onto the Victim’s shirt; and
• Ignite the flammable liquid on the Victim’s shirt.

Mr Rowe took no steps to stop Mr Chenoweth from acting as he did and Mr Rowe in fact squirted more flammable liquid onto the Victim’s shirt while it was burning.

SafeWork SA commenced proceedings against Mr Chenoweth and Mr Rowe and they both pleaded guilty to breaches of section 31 of the WHS Act, relating to reckless conduct.

Decisions

The SAET found that both Mr Chenowith’s and Mr Rowe’s conduct made it possible for the Victim to be killed or sustain serious injuries from burns to his body. They were also found to have been reckless as to the risk of death or serious injury to the Victim. The SAET emphasised the fact that the Victim was extremely fortuitous to not have suffered severe injuries or death.

Given the fact that both Mr Chenoweth and Mr Rowe pleaded guilty to breaches of the WHS Act, the role of the SAET in the Decisions was to consider the appropriate penalties for both men.

In respect of Mr Chenoweth, the SAET acknowledged the seriousness of his actions and the potential of a devastating outcome to have ensued. Although the SAET accepted that Mr Chenoweth is unlikely to commit such an offence again, he was young at the time of offending (26 years of age) and he was remorseful and contrite, the SAET could not “identify a good reason not to record a conviction” given the fact that his conduct put the Victim at serious risk of serious potential harm. The SAET concluded that a fine would be appropriate in the circumstances, and imposed a fine of $21,000 (after a 40% discount due to Mr Chenoweth’s early guilty plea). Mr Chenoweth was also ordered to pay various costs.

In regards to Mr Rowe, the SAET also considered his acts and omissions to be serious. Mr Rowe was convicted and the SAET issued him a fine of $12,000 (after a 40% discount due to his early guilty plea) and costs, after having taken into consideration Mr Rowe’s loss of long-term employment and his genuine remorse.

Take Home Messages

There is no more place for ‘hazing’ or employees to be subject to ‘rites of passage’ in the workplace. Such behaviour should not be encouraged. The Decisions reiterate that bystanders and those who do not intervene when other employees are engaging in reckless or inappropriate conduct may also be liable for breaches of the WHS Act.

In order to deter such behaviour, we recommend that employers provide work, health and safety training to their employees to remind them of their obligations pursuant to the WHS Act, and potential consequences for failing to conduct themselves appropriately.

For more specific information on any of the material contained in this article please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au or Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au.