New case note: WorkSafe’s decision not to formally investigate an incident

The complainant was injured at a mine site on 11 April 2018 while doing a demolition job for a mining company. The company notified WorkSafe and advised that the complainant suffered a minor soft tissue injury. After visiting the site and preliminary enquiries, WorkSafe decided not to conduct a formal investigation and instead issued a prohibition notice on any further demolition work between 13 April and 19 April while it inspected the mine and reviewed the company’s response.

Although more information was provided over the following year, WorkSafe twice declined to revisit its decision.

The complainant and his lawyer also raised concerns about irregularities in documentation.

The complaint asked the Chief Ombudsman to look at WorkSafe’s decision not to conduct a formal investigation and its refusals to reconsider, irregularities in documents and alleged falsified information.

The Chief Ombudsman said WorkSafe’s original decision to issue a prohibition order was proportionate on the information available. However, its first refusal to reconsider its decision not to formally investigate was unreasonable because it did not properly consider the request and all relevant information. The Chief Ombudsman formed the opinion that the second decision not to formally investigate and its response were unreasonable because it did not give the matter proper consideration.

The Chief Ombudsman also noted a lack of parity between WorkSafe’s interaction with the mining company and the complainant.

He considered that WorkSafe treated the complainant with a lack of regard and courtesy.

The Chief Ombudsman found no evidence that WorkSafe had deliberately  removed or falsified information from documents.

The Chief Ombudsman recommended Worksafe apologise to the complainant for not properly considering and responding to updated information on his injury and concerns and for failing to engage with him in a meaningful way.

He did not recommend WorkSafe reconsider its decision not to investigate because the 12-month statutory limit for laying charges had elapsed.

WorkSafe accepted the recommendations.

It apologised to the complainant and made a standing offer to meet him.

Read the case note: Worksafe's decision not to formally investigate incident