Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Robinson v Macquarie University [2003] NSWIRComm 466 PARTIES : Inspector Robinson Macquarie University FILE NUMBER: IRC 1401 of 2003 CORAM: Curtis AJ LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 12/15/2003 EXTEMPORE JUDGMENT DATE : 12/15/2003 PROSECUTOR: Ms PE McDonald of counsel SOLICITOR: Miss R Panagoda WorkCover Authority Legal Group LEGAL REPRESENTATIVES: DEFENDANT: Mr RF Crow of counsel SOLICITORS: Foulsham and Geddes JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: CURTIS AJ DATE: 15 DECEMBER 2003 IRC 1401 of 2003 INSPECTOR PETER ROBINSON v MACQUARIE UNIVERSITY Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 EX TEMPORE JUDGMENT 1 Macquarie University pleads guilty to a contravention of s15 of the Occupational Health and Safety Act 1983 in that on 15 March 2001 it failed to ensure the health, safety and welfare of its employee, Daniel Bayer. 2 It is alleged that the university failed to provide and maintain a safe system of work for Mr Bayer's duties as a cashier, which included carrying cash and other valuables from the cashier's office to the premises of the National Australia Bank on campus and that it failed to give him adequate training in relation to advisable behaviour in the event of an armed hold-up. 3 On 15 March 2001, Mr Bayer, in possession of a briefcase carrying approximately $22,000 cash and significantly more than that in cheques, accompanied two uniformed and armed agents of Chubb Securities Pty Ltd (Chubb) from the cashier's office into the motor car of one of the Chubb personnel. The car then commenced a circuitous route through the grounds of the university to arrive at the premises of the bank. These premises were in fact located only one hundred metres walking distance from the cashier's office at the opposite end of the quadrangle. 4 When, at a distant part of the university adjacent to the sports ground, the car slowed to pass over a speed hump, two men carrying guns ran up on either side of the vehicle. The guns were placed to the heads of the security guards because the windows were down at the time. The car stopped, the money was taken and the perpetrators escaped. 5 It is alleged against the university that it failed to provide a safe system of work because the transfer of funds took place at the same time every day. That the times of transfer of funds should be staggered so as to reduce the possibility of armed hold-up is quite apparent from the evidence. 6 The question arises as to what extent it was the fault of the university that such a system was not followed. 7 To my mind, the university did not fail to recognise a threat to safety nor to address that risk. 8 On 21 January 2000, the Occupational Health and Safety Committee of the university raised the question of the safety of an employee from the security section transferring monies between the offices of the premises on campus. On 29 February 2000 that concern was again raised and on 31 March 2000 a suggestion was made by the committee that safety would also require staggered times. 9 In recognition of the risk the university called for a quotation for security companies to provide armed escorts to transfer the monies, in the terms of the quotations, between the hours of 8.30 am and 11.00 am. 10 On 3 May 2000, Chubb Securities forwarded a quote to the university and in that quote proposed that the cash escort services be conducted between 8.45am and 9.45am including bank and public holidays. 11 That the quotation of Chubb admitted of a repetition of transfers at the same time each day to the detriment of health and safety is recognised in paragraph 2 of the proposal information in which Chubb points out to the person considering the quotation that: There could be times when the officers may be required to remain at your premises and put in jeopardy time to complete collection services for other customers and ...whilst we do not charge for waiting time on sites we do ask clients to not penalise us for being late or missing a call due to the shared nature of the security service. 12 There is evidence in annexure F to the affidavit of Mr Dikha that when employees of Chubb attended upon the university on 12 May 2000 to inspect the task required, there was a conversation between numbers of employees of Chubb and of the university in which Chubb advised the university that a recommended procedure would be for the escort and the employee to travel straight across the courtyard and that sealed satchels be delivered by the security officers without the staff being involved. 13 There is no evidence before me in the present matter as to why these recommendations were not followed. It may be that the presence of men carrying guns in the courtyard was not unreasonably thought by the university to pose a greater general risk to safety than the risks posed by the more circuitous route. 14 In as far as the letter of 19 April 2001, exhibit F to Mr Dikha's affidavit, does refer to a suggestion that the times of the pick-up be varied, I find it inconsistent with the quotation offered by Chubb which was dated 3 May 2000, that is, before there was any discussion at all between officers of the university and Chubb. 15 I believe that the university acted reasonably in identifying the problem and retaining by contract the services of experts in order to rely upon their expertise. The university has staff expert in many fields of human endeavour. It is unreasonable that they should be required to be expert in everything. 16 However, it is the case that as a matter of law the university may not delegate the duty imposed by the Occupational Health and Safety Act, and further, it did fail to instruct Mr Bayer in how he should react in the case of an armed hold-up. Prior to March of 2001, Mr Ugo Cernot, a member of the Occupational Health and Safety Committee of the university had attended a meeting at the university in which the possibility of a hold-up was discussed and the advice of detectives from Eastwood Police Station sought. Mr Cernot obtained a document entitled "A Guide to Protect People and Profits from Armed Hold-up", and a copy of that document was provided to the cashier's office. Page 10 of the document speaks of the emphasis there should be placed on training and page 11 gives armed hold-up survival rules which suggest, amongst other things, that staff confronted by armed hold-up stand still, obey the robbers' instructions and remain calm and quiet. There is no evidence as to the failure of the university to show the document to permanent employees. Nevertheless Mr Bayer was a casual cashier and he had not been shown the document, nor had he been given instructions consistent with its tenor. 17 The gravity of the offence is a composite concept which involves the degree to which the health and safety of employees is compromised by relevant omissions or actions and the culpability of the defendant in failing to address and avoid the contingencies. Confrontation by robbers with guns gives rise to risks of serious consequence. However, in one sense the present circumstances are to be distinguished from such cases as those where the failure to guard against falling from heights gives rise to a more immediate peril, rather than that remote peril which occurs as the result of the intervention by a third party. 18 The matter bearing most relevantly upon the gravity of this offence is the degree of culpability. The university had in place a programme to protect the occupational health and safety of its employees and others about its premises. The university proved to be active rather than passive in seeking out a risk to safety and addressing that risk. It identified the problem and it acted reasonably to obviate the problem. It relied upon the expertise of others. 19 The failure for which it is most culpable is the failure to instruct a casual employee. That is not, as I see the events, a systemic failure but a casual act of negligence on the part of the person in charge of the cashier's office who should have recognised that the casual employee had not been instructed in appropriate responses to an armed robbery. 20 Relevant also to culpability is the question of causation. There is no doubt that a person who is confronted by armed robbers is in a situation of grave peril. The extent to which that peril may be reduced or mitigated by such advice as avoiding eye contact, not resisting, and handing over the money is problematical. Such instructions do little more than reinforce common sense. 21 In all the circumstances I regard the offence as falling in the low range of gravity in comparison with a most serious case. Subjective Matters 22 I have before me the evidence of Jack Reginald Bassett a Deputy Vice Chancellor of the university. The university has over 27 thousand students enrolled and employs over 1500 academic and other staff. The only prior offences relate to the one incident in which a post-graduate student spilled some chemical agent creating a danger to an employee and a cleaner who came to clean it up. It would be surprising if given the exigencies of research such mishaps did not occur from time to time. 23 In any event, I regard that incident which occurred on 23 May 2000 as in context not requiring that the university be convicted otherwise than on the basis of having a very good occupational health and safety record given the number of students, the number of staff and the ambit of its enterprise. The university does an enormous amount of good work. It has a distinguished reputation and occupies an important role in the cultural life of Australia. 24 It is the duty of the Commission to reflect to some degree public opinion in the consideration of appropriate sentence. Public opinion is currently to my mind sympathetic to the fiscal vice in which the universities find themselves and which limits their ability to discharge their primary function. 25 In all the circumstances I find that an appropriate penalty would otherwise be $80,000. I propose to apply a discount of 25 percent in respect of an early plea of guilty and 10 percent discount in relation to other factors so that the defendant is convicted and fined $52,000. 26 I direct that a moiety of the fine be remitted to WorkCover and the defendant pay the prosecution costs as agreed or assessed or subject to further order. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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