“Hands on” Director not prosecuted

27 March 2025. 3 minute read.

The recent case of SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58 resulted in a rare outcome and a lesson learned for Directors and CEOs in managing their health and safety obligations.

In the case, the sole director of a medium sized transport business, Mr. Doble, was accused of failing to exercise "due diligence" under section 27 of the Work Health and Safety Act 2011 in response to a workplace incident where a worker suffered serious injuries after being struck by a forklift in 2020. Mr Doble was not directly involved in the incident.

Directors of organisations have an assurance role in workplace health and safety compliance. As Officers of the PCBU the must ensure that the PCBU (organisation) complies with its WHS duties as stated in the WHS Act 2011. In small and even medium-sized businesses, directors may be able to carry out some of these actions themselves, or at least be present, visible and accessible to the workforce for consultation and coordination on some matters, especially if there is money needing to be spent.

In large organisations directors cannot be expected to personally conduct all the actions that they must "ensure." They use their leadership team to perform required tasks and facilitate needed consultation on WHS matters. Although the duty is the director’s, the director must do anything and everything to demonstrate compliance with the duty, without delegating the duty itself, but utilise all resources available to them. (WHS duties are “non-delegable duties” as stated in Sections 14 and 272 of the WHS Act. [ref 1])

In the Doble case, the court found that Mr Doble had taken demonstrable and significant steps to ensure compliance with his due diligence obligations as Director. He regularly attended management meetings where WHS was a standing agenda item, directly consulted and engaged in discussions about safety measures, and followed up on their implementation. Furthermore, Mr Doble ensured that the business had a compliance manager to coordinate WHS matters at each of the company’s depots. The Court held that Mr Doble “cannot know everything that is going on at any given moment. To run a corporation there must be a level of delegation”. As such, Mr Doble was able to reasonably rely on the data given to him by his compliance manager for managing safety.

The court found that Mr Doble took an active role in ensuring WHS compliance and was a “hands-on” director. Consequently, the court found that he had not breached section 27 of the WHS Act.

Historically, workplace health and safety cases have seen directors who were directly involved in the events leading up to an incident prosecuted for failures under Section 27. The fact that these directors were essentially “on the tools” made it easy to tie in the actions or inactions of the director to the incident.

Doble as a case is not very useful or enlightening for large organisations where directors otherwise must make extensive use of their leadership team to fulfil their due diligence obligations and are more deeply involved in responsibilities for strategic oversight and governance, sometimes over multiple businesses, rather than day-to-day operations.

Such personal involvement by a director in a large business compared to personal involvement of a director in a small business is unrealistic. Without forfeiting accountability, Directors of large businesses may need to employ consultants and sub-contractors to assist them to comply.

While the WHS Act does not expressly require directors to personally manage workplace health and safety, the Doble case tells us that a “hands-on” director may find themselves in an easier defensive position for having to prove their commitment to the health and safety of the workplace and their assurance role for the organisation. In the Doble case the director was able to prove this and was not charged.

The case underscores the necessity for directors to be actively engaged in WHS compliance, whether personally involved, or through their leadership team and other resources.

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us by email at train@courtenell.com.au or phone us on 02 9552 2066

Ref 1:

• WHS Act, Section 14: " A duty cannot be transferred to another person."

• WHS Act, Section 272: "A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void."