Duplicity – appeal currently underway:
Oaten v Diemould Tooling Services Pty Ltd and Markos v Santos Ltd [2007] SAIRC 44 – Industrial Relations Court of SA – Judgement delivered on 24th August 2007

Diemould Tooling Services Pty Ltd and Santos Ltd were each charged with offences relating to workplace health and safety. Diemould was charged with a single offence under section 19 of the Occupational Health Safety and Welfare Act following the death of an employee, while Santos was charged with a single offence under section 12 of the Dangerous Substances Act and offences under sections 19 and 22 of the OHSW Act.

In both cases, each offence with which the employer was charged was supported by a series of particulars. Diemould, for example, was charged with the single section 19 OHSW Act offence of “failing to ensure, so far as is reasonably practicable, that the employee was, whilst at work, safe from injury and risks to health”, and the particulars set out in the complaint included allegations about the safety of the plant used by the worker, the safety of the systems of work for employees using the piece of equipment that killed the worker, and the adequacy of information, instructions, training and supervision provided to the worker.

Diemould and Santos argued that complaints framed in such a way were bad for duplicity because they permitted the laying of a single charge underpinned by a series of allegations, the proof of any one of which would constitute an offence. Diemould and Santos argued that defendants thus had to defend each allegation and, even if exonerated on all but one, would not have the benefit of any acquittals, while the complainant would be “in a position to throw as much mud as it wishes on the basis that if only a bit sticks, that’s good enough.” Diemould and Santos argued that, instead, each particular should give rise to a separate charge – eg instead of being charged with the single offence of failing to ensure the health and safety of an employee, Diemould should have been charged with failing to ensure the safety of the plant used by the worker AND with failing to ensure the worker was adequately trained and supervised AND with failing to ensure the safety of systems of work for employees using the piece of equipment that killed the worker.

The Industrial Relations Court of SA favoured the Crown’s submissions on this topic and found that sections 19(1) and 22(2) of the OHSW Act each impose a single duty upon an employer: to ensure the health and safety of an employee or to take reasonable care – “ensure” and “take reasonable care” were found by the Court to be key to the correct construction, respectively, of s.19(1) and s.22(2). The Court explained that the sub-paragraphs of s.19(1) and s.22(2) are not allegations of distinct and separate breaches of s.19(1) and s.22(2).