WorkCover Authority of New South Wales (Inspector Henson) v Chadraoui & Sons Pty Limited and Mounir Chadraoui [2004] NSWIRComm 356

WorkCover Authority of New South Wales (Inspector Henson) v Chadraoui & Sons Pty Limited and Mounir Chadraoui [2004] NSWIRComm 356

Given the foreseeable and significant risks to employee health and safety, the failures to provide fall protection or prevent access to danger constituted serious breaches under s8(1) and s26(1) of the OHS Act. Penalty must reflect objective gravity, deterrence, the defendant’s cooperation, remorse, mitigation, and financial capacity; early plea and post-incident remedial efforts justified discounts.

Parties
Prosecutor: WorkCover Authority of New South Wales (Inspector Henson); Defendant: Chadraoui & Sons Pty Limited; Defendant: Mounir Chadraoui
Jurisdiction
Australia
Judgment Date
22 November 2004
Procedural Posture
Criminal Prosecution / Sentencing After Guilty Plea
Outcome
Defendants convicted. Penalties imposed. Costs awarded to prosecutor for company matter only.
Legal Topics
Failure to Ensure Safe System of Work, Duty of Directors Under OHS Legislation, Assessment of Penalty, Financial Circumstances of Defendant, Deterrence in Sentencing
Occupational Health and Safety Industrial Law Failure to Ensure Safe System of Work Duty of Directors Under OHS Legislation Assessment of Penalty Financial Circumstances of Defendant Deterrence in Sentencing

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Parties

WorkCover Authority of New South Wales (Inspector Henson)

Prosecutor

Chadraoui & Sons Pty Limited

Defendant

Mounir Chadraoui

Defendant

Procedural Posture

Criminal Prosecution / Sentencing After Guilty Plea

Legal Issues

  1. 1 Whether the defendants failed to ensure the health, safety and welfare at work of employees under Occupational Health and Safety Act 2000.
  2. 2 Whether Mr Chadraoui, as director, should be taken to have contravened the same obligation by reason of s26(1) OHS Act.

Ratio Decidendi

Given the foreseeable and significant risks to employee health and safety, the failures to provide fall protection or prevent access to danger constituted serious breaches under s8(1) and s26(1) of the OHS Act. Penalty must reflect objective gravity, deterrence, the defendant’s cooperation, remorse, mitigation, and financial capacity; early plea and post-incident remedial efforts justified discounts.

Court Disposition

Defendants convicted. Penalties imposed. Costs awarded to prosecutor for company matter only.

Orders

  • Matter No IRC 7265 of 2003: Chadraoui & Sons Pty Limited convicted and fined $22,750. Moiety to prosecution.
  • Matter No IRC 7264 of 2003: Mounir Chadraoui convicted and fined $2,600. Moiety to prosecution.