Inspector Michael Duncan v Salim Sarkis [2007] NSWIRComm 222

Industrial Court of New South Wales

CITATION: Inspector Michael Duncan v Salim Sarkis [2007] NSWIRComm 222

PROSECUTOR: Inspector Michael Duncan

PARTIES: DEFENDANT: Salim Sarkis

FILE NUMBER(S): IRC 159 of 2007

CORAM: Haylen J

CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(1) - demolition and removal of fittings from shopping mall store - workers left unsupervised - heavy bulkhead falls when support removed - employee seriously injured - failure to adequately assess and control risks associated with dismantling and removal of bulkhead - failure to ensure systems of work appropriate for type of work - serious breach - need for general and specific deterrence - early plea - no prior record - penalty imposed.

HEARING DATES: 24 August 2007 EXTEMPORE JUDGMENT DATE: 24 August 2007

PROSECUTOR: Mr P Skinner of counsel SOLICITORS: LEGAL REPRESENTATIVES: WorkCover Authority Legal Group

DEFENDANT: In person

JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 24 August 2007

Matter No IRC 159 of 2007 INSPECTOR MICHAEL DUNCAN v SALIM SARKIS Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2007] NSWIRComm 222

1 Mr Salim Sarkis works in the building and construction industry performing demolition work, strip-outs and rubbish removal. On Sunday night, 13 February 2005, he was engaged with six persons he had employed in the demolition of the fittings and associated fit out of the Esprit shop in the Warringah Mall. This work was performed out of business hours as required by the management of Warringah Mall. 2 During the course of this work a large bulkhead was required to be removed. Before this particular work got underway Mr Sarkis left the work site to transfer building debris to a waste station in Artarmon. No arrangements were made for a competent person to oversee the work during Mr Sarkis' absence and the work continued unsupervised. 3 During the course of removing vertical pillars attached to a bulkhead, ultimately the overhead bulkhead collapsed, seriously injuring one the labourers, Mr Lorenzo Treglia. The incident was investigated by the WorkCover authority and in February 2007 proceedings were commenced against Mr Sarkis, alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000. A charge under s 9, in the alternative, was not pressed. 4 Mr Sarkis has entered a plea of guilty to an amended application for order. The charge was that being an employer between 13 and 14 February 2005 at the Warringah Mall he failed to ensure the health safety and welfare at work of all his employees and in particular Lorenzo Treglia, contrary to s 8(1) of the Occupational Health and Safety Act 2000. The particulars of that charge were as follows: (a) The defendant failed to adequately assess and control the risks associated with the dismantling and removal of the bulkhead and pillars at the entrance to the Esprit in Australia store; (b) The defendant failed to ensure that the systems of work for dismantling the bulkhead and pillars outlined in the safe work method statement, were appropriate for that activity; (c) The defendant failed to provide such information, instruction, training and supervision as was necessary to ensure the health and safety of his employees, particularly in relation to the structures that were to be dismantled and removed and the means by which these structures were supported and to ensure that the employees were aware of the contents of the safe work method statement. 5 The last reference to "ensuring employees were aware of the safe work method statement" was not pressed in light of documents placed before the Court and information passed by Mr Sarkis to the prosecutor.