In the recent decision of Landmark Roofing Pty Ltd v SafeWork NSW (2021), a Court has rejected an organisation’s argument that it could not be held liable for the misconduct of its supervisor, who had deliberately disobeyed instructions.

This case involved the death of a worker who had fallen through a skylight on a roof when he was unsecured. On the morning of the incident, the person conducting a business or undertaking (PCBU) provided specific instructions to the supervisor that workers should be safely secured. The supervisor deliberately ignored the direction.

The trial Judge Russell convicted the PCBU and fined it $400,000 after finding that it was responsible for not ensuring a safe system of work, even though it was the decision of an individual supervisor not to follow the direction.

The PCBU appealed the decision. The Court ultimately agreed with the trial Judge that the PCBU breached the Work Health and Safety Act 2011 NSW (WHS Act) "on a number of bases, not merely because it was responsible for the conduct of" the supervisor.

The Court addressed the specific issue of whether the supervisor’s disobedience allowed the PCBU to avoid liability for the actions of its employees. For the disobedience to be taken to be conduct of the PCBU, section 244 of the WHS Act required the Court to be satisfied that the conduct of the supervisor was “within the actual or apparent scope of his or her employment”.

In this case, the supervisor was found to be performing an authorised act, even though it was in performed in an unauthorised manner. This fact meant that he was always acting within the scope of his employment, whether or not he chose to follow the PCBU’s instructions. The Court also noted that the foreseeability of any disobedience was not a consideration under section 244, which simply attributes the failings of the employees to the PCBU.

The appeal was dismissed and the original judgement was upheld.