By: Chris Spain and Petra Kolovos

At a glance

  • Victoria’s workplace manslaughter laws came into effect in 2020. The laws carry a maximum penalty of 25 years’ jail for individuals and fines in excess of $19 million for companies.
  • On 19 February 2024, the Victorian Supreme Court delivered the first sentences under the workplace manslaughter laws following the death of a factory worker in a forklift accident in October 2021.
  • The company involved in the death was convicted and fined $1.3 million while its sole director was also convicted and placed on a two-year community corrections order.

Background

Mr Michael Tsahrelias, a 25-year-old subcontractor, died in a forklift accident at the workplace of LH Holding Management Pty Ltd (LH Holding). LH Holding is a stone masonry business, and its sole director is Mr Laith Hanna.

On 12 October 2021, Mr Hanna was attempting to move an A-frame rack which had two slabs of stone stacked on it. Mr Hanna used an overhead crane to remove the slabs from the A-frame rack. He then used a forklift to move the empty A-frame rack to a different part of the workplace.

While operating the forklift to move the A-frame rack, Mr Hanna drove it forwards across a slope and he also drove the forklift with a high swinging load. Immediately before the incident, Mr Tsahrelias was standing near the forklift attempting to assist with stabilising the load. Tragically, the forklift then tipped and crushed Mr Tsahrelias.

Mr Hanna’s evidence was that he told Mr Tsahrelias to move prior to the incident occurring and he believed that Mr Tsahrelias was out of the way when the forklift was operating.

The WorkSafe investigation found that it was reasonably practicable for LH Holding to reduce the risk of serious injury or death by ensuring that:

  • the load on the forklift was as low to the ground as possible when the forklift was being driven
  • the forklift was driven in reverse down the incline
  • an exclusion zone was in place so that the forklift was only operated when people were at a safe distance, and
  • the forklift was not driven across or turned on a slope.

Relevant provisions of the Occupational Health and Safety Act 2004 (Vic)

Section 39G(1) of the Occupational Health and Safety Act 2004 (Vic) (the Act) provides that a person must not engage in conduct that is negligent and constitutes a breach of duty owed to a person which causes the death of that person. The maximum penalty is 25 years imprisonment for a person or a fine of 100,000 penalty units (currently $19,231,000) for a company.

LH Holding had a duty pursuant to section 26 of the Act to ensure, so far as was reasonably practicable, that the workplace and the means of entering and leaving it were safe and without risks to health. Having accepted that it was in breach of this duty, LH Holding pleaded guilty to a single charge pursuant to section 39G(1) of the Act.

Mr Hanna pleaded guilty to a single charge under section 144(1) of the Act. This section provides that, where a company contravenes a provision of the Act, in this case section 39G(1), an officer can also commit an offence where the company’s contravention is attributable to the officer’s failure to take reasonable care. In this prosecution, LH Holding’s contravention was attributable to Mr Hanna’s failure to take reasonable care in that:

  • he was the sole director of LH Holding and able to make decisions about its safety measures
  • he was operating the forklift when the incident occurred, and
  • he knew the risks at the workplace and LH Holding’s contravention was not attributable to any act or omission of any other person.

Sentencing

The outcome of the prosecution was as follows:

  • LH Holding was convicted and fined $1.3 million
  • Mr Hanna was convicted and placed on a two-year community corrections order to complete 200 hours of unpaid community work and a course in forklift operation, and
  • LH Holding and Mr Hanna were ordered to pay $120,000 in compensation to the deceased worker’s family for pain and suffering.

In sentencing, the Court noted that there is a need to deter the conduct the subject of the incident and to reflect the severity of conduct that places lives at risk. The Court also accepted the Prosecution’s submission that Mr Hanna’s contribution to the death was of great significance because he was responsible for the operation of the forklift.

Review of sentencing for workplace health and safety offences

On the issue of sentencing, it is important to note that earlier this year the Victorian Government provided the Sentencing Advisory Council with terms of reference to examine the sentencing of occupational health and safety offences, including to make recommendations for reform.

This will be the first review of sentencing practices since the Act came into effect in 2004, and has the potential to result in changes to sentencing practices in future prosecutions, including those involving workplace manslaughter.

An important reminder for companies and directors

This case is an important reminder that Victoria’s occupational health and safety laws apply to individuals as well as companies. The risk is real and significant, and it is critical that all duty holders understand their obligations under the Act to limit risks to health and safety in the workplace.