Workplace Fatality from Disobeying Orders: When is an Employer Legally Responsible for a Worker’s Unauthorised Actions?

Introduction

Based on the authentic Australian judicial case Kalidonis NT Pty Ltd v Work Health Authority [2025] NTSC 28, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

• Court of Hearing: Supreme Court of the Northern Territory
• Presiding Judge: Brownhill J
• Cause of Action: Criminal Appeal against convictions and sentence under the Work Health and Safety (National Uniform Legislation) Act 2011 (NT)
• Judgment Date: 16 May 2025

Core Keywords

• Keyword 1: Authentic Judgment Case
• Keyword 2: Workplace Health and Safety (WHS)
• Keyword 3: Employer Duty of Care
• Keyword 4: Reasonably Practicable Measures
• Keyword 5: Foreseeable Risk
• Keyword 6: Criminal Liability of Corporations

Background

This case concerns a tragic workplace fatality and the subsequent criminal prosecution of the employer company. An experienced excavator operator, engaged by the Appellant company, was killed when a chain used to tow a bogged excavator snapped and struck him. The incident occurred after a series of similar, non-fatal attempts to recover the machinery using unsafe methods, despite some verbal instructions from management to the contrary. The company was found guilty in the Local Court on two counts of failing to comply with its primary health and safety duty, thereby exposing the worker to a risk of death or serious injury.

Core Disputes and Claims

The core of the appeal lies in a fundamental question of corporate criminal responsibility: to what extent is an employer liable for the death of an employee who acts in direct contravention of instructions?

• The Appellant’s (The Company’s) Core Claim: The deceased worker was experienced and acted on a “frolic of his own,” deliberately disobeying clear directions. The company had taken all reasonably practicable steps by identifying the hazard, ordering appropriate safety equipment (a recovery strap), and instructing the worker not to use unsafe methods. Therefore, the company argued its safety systems were adequate and the worker’s own actions were the sole cause of the incident, making the convictions unsafe and the sentence manifestly excessive.

• The Respondent’s (The Work Health Authority’s) Core Claim: The employer’s duty of care is non-delegable and proactive. Given the worker’s known history of non-compliance and the extreme danger of the task, the company’s verbal instructions were insufficient. The company failed to implement a suite of reasonably practicable measures, such as imposing effective discipline, providing clear and universal safety directives, and ensuring adequate supervision, which would have mitigated the foreseeable risk of the worker disobeying instructions.

Chapter 2: Origin of the Case

In early 2020, the Appellant was engaged in a project to upgrade a barge landing in the remote community of Maningrida. In mid-February, one of its excavators (a Caterpillar) became bogged on the tidal flats after the operator—the deceased—undertook unauthorised work against the direction of the company’s sole director, Mr Kalidonis.

The initial attempt to recover the bogged excavator was fraught with danger. On 15 February, the deceased, with the knowledge of the site manager, attempted to tow the machine using chains, which snapped multiple times. This conduct resulted in the dismissal of another worker involved, and a stern warning to the deceased that he would be terminated for any further unauthorised actions.

Despite this, the company’s primary plan was to wait for a specially ordered 70-tonne nylon recovery strap to arrive before attempting a formal recovery. In the interim, a mechanic was engaged to prepare the bogged excavator so it could be moved.

However, on 11 and 12 March, before the recovery strap arrived, the deceased again used chains in attempts to move the excavator. On 12 March, this was done in the presence of the company director, who saw the activity, became angry, and again terminated the deceased’s employment, only to reinstate him the following day after the deceased pleaded for his job back.

On the morning of 20 March 2020, the company director instructed the deceased to prepare other equipment for loading onto a barge but specifically directed him to only push the bogged excavator with the bucket of another machine and not to use chains to tow it. Later that afternoon, ignoring this final instruction, the deceased, with the assistance of another labourer, attached a chain to tow the excavator. The chain snapped, fatally striking him in the head.

Chapter 3: Key Evidence and Core Disputes

The Appellant’s Main Evidence and Arguments

• The director, Mr Kalidonis, gave evidence that he had explicitly and repeatedly instructed the deceased not to tow the excavator and to wait for the correct recovery strap.
• The deceased was a highly experienced operator who knew the risks but chose to ignore safety protocols and direct orders.
• The company had taken reasonably practicable steps by ordering the AUD $15,000 recovery strap, engaging mechanics, and issuing verbal warnings and a temporary dismissal.
• The incident was a direct result of the deceased’s unforeseeable and disobedient conduct, which broke the chain of causation.

The Respondent’s Main Evidence and Arguments

• Evidence from the site manager, Mr Pastrikos, confirmed he was aware of the initial unsafe towing attempt on 15 February but did not report it up the chain of command or take effective disciplinary action.
• Evidence from other workers, including Mr Bell (mechanic) and Mr Brian (labourer), established that towing with chains occurred on multiple occasions.
• The company knew the deceased had a propensity for not following instructions, making his subsequent disobedience foreseeable.
• Despite this foreseeability, the company failed to implement systemic controls, such as a formal lock-out/tag-out procedure on the unsafe chains, a specific Safe Work Method Statement (SWMS) prohibiting chain towing, or adequate supervision.

Core Dispute Points

1. Foreseeability vs. “Frolic of His Own”: Was the deceased’s fatal act of disobedience an unforeseeable, independent act, or was it a foreseeable outcome given his known history of non-compliance and the company’s insufficient response?
2. Sufficiency of “Reasonably Practicable” Measures: Were verbal warnings and ordering the correct equipment enough to discharge the employer’s duty, or did the high-risk situation demand more robust physical and administrative controls like supervision and lock-out systems?
3. Attribution of Knowledge: Was the knowledge of the site manager (regarding the first unsafe towing attempt) attributable to the company as a whole, thereby establishing an earlier and more comprehensive failure to act?

Chapter 4: Statements in Affidavits

The factual matrix was primarily built upon the statutory declarations and witness statements of key personnel. The director’s statement formed the backbone of the Appellant’s defence, framing his actions as those of a reasonable manager dealing with a rogue employee. He detailed the instructions he gave, the purchase of the recovery strap, and his anger and disciplinary actions following the deceased’s repeated breaches.

Conversely, the statements from the site manager, the mechanic, and the labourer who assisted on the final day collectively painted a picture of a workplace where unsafe practices had occurred repeatedly. The site manager’s admission that he was aware of the initial unsafe towing attempt but did not escalate it was a critical piece of evidence. This highlighted a systemic failure, suggesting that the company’s safety culture and reporting lines were not robust enough to manage a known, high-risk employee. The affidavits, when read together, revealed a disconnect between head office’s formal plan and the reality of on-the-ground operations and supervision.

Chapter 5: Court Orders

The matter originated in the Local Court of the Northern Territory, which, after a contested hearing, delivered the following orders:
1. The Appellant was found guilty of two counts of breaching Section 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT).
2. On Count 1, a conviction was recorded and a fine of AUD $400,000 was imposed.
3. On Count 2, a conviction was recorded and a fine of AUD $550,000 was imposed, to be served entirely concurrently with the fine for Count 1.
4. The effective total fine imposed on the Appellant was AUD $550,000.

The Appellant subsequently appealed these convictions and the severity of the sentence to the Supreme Court of the Northern Territory.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The appeal before Justice Brownhill was not a re-hearing of the evidence but an intense examination of whether the Local Court Judge had made an error of law or fact. The Appellant’s counsel argued forcefully that the original verdict was unsafe because it failed to give proper weight to the deceased’s deliberate disobedience, effectively punishing the employer for the unforeseeable actions of an employee.

However, the Court meticulously dismantled this argument. Justice Brownhill conducted an independent assessment of the evidence and found that the Local Court was correct in its reasoning. The critical turning point was the issue of foreseeability. The Court held that once an employer is aware that an employee has a history of non-compliance—particularly after the first unauthorised towing attempt on 15 February and the subsequent attempt on 12 March—that employee’s future non-compliance is no longer unforeseeable. It becomes a known risk that the employer has a duty to manage.

The Court’s reasoning pivoted from blaming the worker to scrutinising the adequacy of the employer’s system to control a known risk. Justice Brownhill found that the Appellant’s responses were “insufficient.” A stern talking-to and a brief “firing” were not effective deterrents. In a high-risk environment with a known non-compliant employee, reasonably practicable measures required a higher level of intervention. The Court articulated this powerfully:

If that ‘tagging’ had been reinforced with communications to all workers about the dangers of towing heavy machinery with chain, with an unequivocal direction to all workers that the Caterpillar excavator was not to be towed, with a clear policy communicated to all workers that serious disciplinary consequences would immediately follow for any worker involved in towing it, and with appropriate monitoring and supervision of any movement of the Caterpillar excavator, all of which were found by the Local Court to be absent, those things would have substantially mitigated the identified risks.

This statement was determinative. It established that the Appellant had multiple opportunities to implement simple, low-cost administrative and physical controls that would have directly addressed the foreseeable risk. The failure to do so, not the employee’s final act of disobedience, was the basis of the company’s criminal liability.

Chapter 7: Final Judgment of the Court

The Supreme Court delivered the following final orders:
1. The appeal against the convictions on both Count 1 and Count 2 is dismissed.
2. The appeal against the sentence is dismissed.
3. The parties are to be heard on the question of costs.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

The jurisprudential value of this case lies in its powerful affirmation that an employer’s safety duty under the WHS Act is proactive and systemic, not merely reactive or reliant on employee compliance. It serves as a stark warning to employers that they cannot absolve themselves of liability simply by issuing instructions, especially when dealing with employees known to disregard them. The judgment reinforces the principle that human error, and even deliberate disobedience, is a foreseeable workplace hazard that must be managed through robust systems, not just directives. It moves the legal focus from the employee’s final mistake to the employer’s cumulative failure to create a system that was resilient enough to prevent it.

Judgment Points

• Attribution of Knowledge: The Court confirmed that the knowledge of a site manager regarding an unsafe practice is attributed to the company as a whole. This meant the company was deemed to have known about the unsafe use of chains from the very first incident, triggering its duty to respond effectively long before the fatal event.
• “Insufficient” Measures: The Court’s finding that the employer’s measures were “insufficient” was not an exercise in hindsight. It was a prospective assessment based on the information the company had at the time. Knowing the worker’s history, the company’s response was not proportionate to the high level of foreseeable risk.
• Discipline Must Be Effective: The act of firing an employee and reinstating them less than 12 hours later was correctly identified as an ineffective disciplinary measure that failed to reinforce the seriousness of the safety breach.

Legal Basis

The judgment hinged on the interplay between two key sections of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT):
* Section 19 (Primary Duty of Care): This section imposes a duty on a person conducting a business or undertaking to ensure, so far as is “reasonably practicable,” the health and safety of workers.
* Section 32 (Failure to Comply with Health and Safety Duty—Category 2): This section creates the offence for failing in the Section 19 duty, where that failure exposes an individual to a risk of death or serious injury.

Evidence Chain

The Respondent’s victory was built on a clear evidentiary chain:
1. The deceased had a demonstrated history of non-compliance with instructions (unauthorised excavation).
2. An unsafe act (towing with chains) occurred on 15 February, which was known to the site manager (and therefore the company).
3. The same unsafe act was repeated on 11 and 12 March, this time with the direct knowledge of the company director.
4. The disciplinary response (a brief “firing”) was manifestly ineffective.
5. No systemic controls (lock-out/tag-out, specific SWMS, universal communication to all workers) were implemented to prevent a recurrence.
6. The foreseeable risk materialized on 20 March with fatal consequences.

Judicial Original Quotation

The core logic of the judgment is encapsulated in the Court’s assessment of the reasonably practicable measures that were absent. Justice Brownhill’s analysis highlights that a multi-layered approach was required to mitigate the known risk posed by the deceased’s likely conduct:

If that ‘tagging’ had been reinforced with communications to all workers about the dangers of towing heavy machinery with chain, with an unequivocal direction to all workers that the Caterpillar excavator was not to be towed, with a clear policy communicated to all workers that serious disciplinary consequences would immediately follow for any worker involved in towing it, and with appropriate monitoring and supervision of any movement of the Caterpillar excavator, all of which were found by the Local Court to be absent, those things would have substantially mitigated the identified risks.

This reasoning demonstrates that the Court did not expect one single “magic bullet” solution. Instead, it identified a suite of simple, low-cost, and standard industry safety practices that, when combined, would have created a robust defence against the foreseeable hazard.

Analysis of the Losing Party’s Failure

The Appellant’s case failed for several key reasons:
1. Over-reliance on the “Rogue Employee” Defence: The company fundamentally misunderstood the nature of its non-delegable duty. It focused on blaming the deceased’s actions rather than scrutinizing the resilience of its own safety systems to prevent such actions.
2. Failure to Escalate and Systematise: The knowledge of the initial unsafe towing attempt by the site manager was a critical warning sign that was not acted upon systemically. It remained an isolated incident instead of triggering a company-wide safety review, training update, and implementation of new controls.
3. Ineffective Disciplinary Measures: The “firing and re-hiring” demonstrated a lack of genuine commitment to enforcing safety rules, sending a message that serious breaches would not carry lasting consequences. This undermined the authority of all subsequent instructions.
4. Conflating Financial Risk with Safety Risk: The company’s initial anger and subsequent policy changes were heavily focused on the financial cost of damaged machinery, not the risk to human life. This indicated a flawed safety culture where asset protection overshadowed personnel protection.

Reference to Comparable Authorities

• Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92: Confirms that an employer’s duty is not absolute but is limited to what is “reasonably practicable.” However, this case demonstrates that where risks are high and foreseeable, the scope of what is “reasonably practicable” expands significantly.
• R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321: Establishes that an employer’s duty requires active implementation and constant monitoring of safety systems, as human error and non-compliance are common and foreseeable workplace experiences.
• Titan Plant Hire Pty Ltd v Work Health Authority [2023] NTSC 88: A key Northern Territory authority on sentencing for serious WHS breaches resulting in death, providing a “yardstick” against which the Appellant’s penalty was measured and found not to be manifestly excessive.

Implications

1. Instructions Are Not a System: Simply telling an employee what to do, even repeatedly, does not constitute a safe system of work. A robust safety system must include administrative controls (policies, SWMS), physical controls (lock-outs, guards), and supervision.
2. Foreseeability Includes Disobedience: If you know an employee has a history of breaking rules, their future disobedience becomes a foreseeable risk. Your safety measures must be designed to account for and control this specific risk.
3. Discipline Must Be Meaningful and Consistent: Disciplinary actions for safety breaches must be genuine, documented, and serve as a credible deterrent. Token gestures can be interpreted as a sign that safety is not the top priority.
4. Knowledge Anywhere is Knowledge Everywhere: In the eyes of the law, what your managers and supervisors know, the company knows. Ensure you have clear and effective channels for safety incidents and concerns to be reported up to senior management immediately.
5. Safety Culture is Proactive, Not Reactive: The time to assess and control risks is before an incident happens. This case shows that even after identifying a hazard (the stuck excavator) and a safe solution (the recovery strap), the failure lay in not managing the risks during the interim waiting period.

Q&A Session

1. Why was the company found guilty when the employee directly disobeyed an order on the day he died?
   The company’s liability was not based on the final act alone. It was based on a cumulative failure to manage a known risk over several weeks. The Court found that because the company knew the employee had disobeyed instructions before and had used unsafe methods, it was foreseeable he might do so again. The company’s duty was to implement reasonably practicable measures to prevent this foreseeable act, which it failed to do. The final instruction was just one part of a safety system that the Court found to be “insufficient” overall.

2. Was the AUD $550,000 fine fair, considering the company had already lost business and its insurance premiums had skyrocketed?
   The Court found the fine was not “manifestly excessive.” While extra-curial punishments like increased premiums and loss of business are considered, they are also seen as natural consequences of a serious safety breach. The primary purposes of sentencing in WHS cases are general and specific deterrence—sending a strong message to the offender and the wider industry about the importance of workplace safety. The Court weighed the company’s mitigating factors (like its prior good record) against the high objective seriousness of the offence and concluded the penalty was within the appropriate range.

3. What is the single most important thing the company could have done differently to avoid this outcome?
   While multiple failures occurred, the single most effective measure would likely have been active and competent supervision. Had a supervisor been tasked with overseeing the entire process of moving the excavator to the barge ramp on 20 March, it is highly probable that the unauthorised use of the chain would have been immediately identified and stopped. This highlights that for high-risk tasks, particularly with employees of known non-compliance, passive measures are not enough; active supervision is a critical and reasonably practicable step.

[Appendix: Reference for Comparable Case Judgments and Practical Guidelines]

1. Practical Positioning of This Case

• Case Subtype: Criminal Prosecution – Workplace Health and Safety Breach
• Judgment Nature Definition: Final Judgment (on Appeal)

2. Self-examination of Core Statutory Elements

⑧ Criminal Law and Traffic Law

• Core Test (Elements of the Offence): Has the prosecution proven the “Actus Reus” (guilty act) and “Mens Rea” (guilty mind) coincided? In this case, the offence under Section 32 of the WHS Act is a strict liability offence. This means the prosecution did not need to prove a “guilty mind” (Mens Rea). It only needed to prove the physical elements: (1) the person had a health and safety duty; (2) the person failed to comply with that duty; and (3) the failure exposed an individual to a risk of death or serious injury.
• Core Test (Standard of Proof): Does the evidence exclude “reasonable doubt”? The Local Court and the Supreme Court on appeal both had to be satisfied beyond reasonable doubt that the Appellant failed to do what was “reasonably practicable” to ensure safety.
• Core Test (Sentencing): Are there aggravating or mitigating factors as per Section 21A of the Crimes (Sentencing Procedure) Act (or equivalent state/territory legislation)? In this case, aggravating factors included the high foreseeability of the risk and the fatal outcome. Mitigating factors included the Appellant’s prior good safety record, its post-incident remedial actions, and the fact that the deceased’s own conduct was a significant contributing factor.

3. Equitable Remedies and Alternative Claims

If dealing with [Criminal / Traffic] matters:

• Statutory Defences: In WHS prosecutions, the main defence is establishing that the duty holder took all “reasonably practicable” steps to ensure safety. This is what the Appellant attempted but failed to prove. Other criminal law defences like self-defence, duress, or mental impairment were not relevant in this corporate prosecution context.
• Abuse of Process: This defence argues that the prosecution is unfair or oppressive. It could be raised if there were extreme delays, improper conduct by the prosecutor, or if the prosecution was brought for an ulterior motive. There was no suggestion of this in the present case. An application to exclude improperly obtained evidence could be made, for example if investigators conducted an unlawful search, but this was not at issue here.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds:

• Limitation Period: Under Section 232 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT), proceedings for an offence must generally be commenced within 2 years after the offence first comes to the regulator’s notice, or 1 year after a coronial report is made, whichever is later. The incident occurred in March 2020, and the complaint was laid in March 2022, placing it within the standard limitation period.

Exceptional Channels (Crucial):

• Suggestion: For businesses, the key takeaway is not to wait for an investigation to conclude. If an incident occurs, immediately engage legal counsel and begin your own internal investigation under legal professional privilege. This allows you to understand your exposure and prepare a defence strategy well before any limitation periods become an issue.

5. Guidelines for Judicial and Legal Citation

Citation Angle

• It is recommended to cite this case in legal submissions or debates involving the scope of an employer’s duty of care where an employee’s disobedience or misconduct is a central issue. It is particularly powerful for demonstrating that foreseeability extends to the risk of non-compliance itself.

Citation Method

• As Positive Support: When arguing that an employer failed in their duty despite issuing instructions, cite this authority to establish that a “reasonably practicable” response to a known risk of employee non-compliance requires more than mere directives. It requires a systemic approach including supervision, training reinforcement, and effective discipline.
• As a Distinguishing Reference: If the opposing party cites this case to argue for employer liability, you should emphasize factual differences. For example, if your client’s employee had no prior history of non-compliance, or if your client had implemented and enforced robust supervision and disciplinary procedures that failed on a single, unforeseeable occasion, you would argue the facts are distinguishable from the systemic failures identified in Kalidonis.

Anonymisation Rule

• Do not use the real names of the parties; strictly use professional procedural titles such as Applicant / Respondent or Appellant / Respondent.

Conclusion

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of the Northern Territory (Kalidonis NT Pty Ltd v Work Health Authority), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

---

Original Case File:

👉 Can’t see the full document?
Click here to download the original judgment document.