Director Due Diligence: What WorkSafe Investigators Look For
You're a director. You've read the headlines about the first workplace manslaughter conviction in Victoria. And somewhere in the back of your mind, a quiet question has started: could that be me?
It's a reasonable question to ask. In February 2024, a Victorian stonemasonry company became the first convicted under Victoria's workplace manslaughter laws. The sole director was convicted and placed on a two-year Community Corrections Order. The incident involved a forklift with a raised load on a sloping driveway. A 25-year-old subcontractor was fatally crushed.
On appeal, the company's fine was increased to $3 million.
What most directors don't realise is that the conviction wasn't primarily about the accident itself. It was about what the director did (and didn't do) before it happened. And that's the distinction that matters for your liability.
Here's what you need to know.
What This Case Actually Shows
The WorkSafe investigation found it was reasonably practicable for the company to reduce the risk of serious injury or death by ensuring that the forklift was driven with the load as low to the ground as possible, driven in reverse down any slope or incline, only operated when other people were at a safe distance, and not driven across or turned on any slope or incline. None of those measures were in place. Instead, there was reliance on informal communication, eye contact between operators and pedestrians, and hope that nothing would go wrong.
The director was found guilty not because he was personally negligent in his day-to-day operations. He was found guilty because he failed to ensure that these basic, reasonably practicable control measures existed. He was the decision-maker. He was the approval authority. And he either didn't know the risks existed, or he knew and didn't act.
That distinction is critical. Workplace manslaughter convictions of directors don't require malice. They require a finding that the director was grossly negligent, which the court defined as a "great falling short of the standard of care that would have been taken by a reasonable person in the circumstances, and it involved a high risk of death or serious injury."
That's the question WorkSafe investigators ask when examining a director's conduct: what control measures were reasonably practicable, and did the director ensure they were implemented?
The Three Things Directors Actually Do to Stay Defensible
Workplace manslaughter is rare. Director convictions are rarer still. But what separates a director who's taking reasonable care from one who isn't comes down to three observable behaviours. Not policies. Not training records. Actual behaviours.
You Actively Pull Hazard Information Up, Not Down
The most common protection directors claim is "I delegated it to the safety manager." Or "I trusted my operations manager to tell me." That's not due diligence. That's abdicating it.
Due diligence means you're actively pulling information. You're visiting sites. You're asking questions. You're asking frontline workers, not just managers, about what's actually happening and what hazards they see. You're documenting these visits, not casually wandering through.
At the Victorian stonemasonry manslaughter case, the director was on site. He was operating the equipment himself. So he knew or should have known that the forklift was on a slope with a load. He didn't need a report. He needed to ask the question: "Why are we allowing this, and what engineering controls could prevent it?"
The difference between a director who's taking reasonable care and one who isn't is this: you don't wait for hazards to bubble up to you. You go looking for them. You ask direct questions. You document what you found and what you're doing about it.
This isn't about micromanaging operations. It's about being visibly and actively engaged in understanding what risks exist.
You Don't Become the Bottleneck on Engineering Controls
Engineering controls are expensive. Training and PPE are cheap. Every director knows this tension.
And every director knows which one WorkSafe expects first. High-level risk controls (eliminating or isolating the hazard) come before administrative controls (training, procedures) and personal protective equipment.
A forklift on a slope is not a training problem. You can't train someone out of a tipping hazard. It's an engineering problem. Either you design the operation so forklifts don't work on slopes, or you engineer the slope so forklifts can work safely on it.
What directors get wrong is assuming they're following the hierarchy of controls when they're not. They approve training on "how to safely use a forklift on a slope," which is not a control at all. It's a work-around that doesn't eliminate the risk.
The critical question directors need to ask themselves is this: Am I the person approving the high-level controls, or am I the person blocking them because of cost? If you're blocking them without documented justification for why they're not reasonably practicable, you're setting yourself up for personal liability.
This is where the director of that case failed. The engineering controls were reasonably practicable. They just weren't implemented.
You Know the Difference Between Real Controls and Paper Controls
Directors often point to their OHS compliance training programs and comprehensive safety systems as evidence of due diligence. And they can be. But only if they're addressing the actual hazards that exist.
A policy that says "operators must ensure the load is as low as possible before operating on any slope" is a paper control if there's no system in place to enforce it, no inspection regime to verify it's happening, and no escalation when it's not.
Real controls are observable. They change the way work actually happens. If you walk onto a site and the forklift is still going up and down slopes with raised loads, the control didn't work. Saying you have a policy about it is not enough.
WorkSafe investigators will ask: How did you know these controls were being followed? What evidence do you have? If you can't answer those questions, you don't have a control. You have paperwork.
A director taking reasonable care asks: Are these controls actually changing behaviour, or am I just documenting that I care about safety? That's the difference between defence and liability.
What Happens If You Get This Wrong
Workplace manslaughter carries a maximum penalty of 20 years imprisonment for an individual. In Victoria, insurance does not cover fines for OHS breaches. You cannot insure away personal liability.
A conviction doesn't require intent. It requires a finding that your failure to ensure reasonably practicable controls was grossly negligent. That's a lower bar than criminal intent. It's negligence of a high degree.
This is not legal advice. I'm describing what WorkSafe investigators examine when assessing director conduct. If you're facing a serious incident or investigation, speak with a lawyer immediately. A lawyer will tell you what's legally required. I can tell you what's operationally defensible and what triggers enforcement scrutiny.
What Happens If You Get It Right
A director who is actively pulling hazard information, approving engineering controls, and ensuring those controls actually work is defensible. Not perfect, not lawsuit-proof, but defensible. If an incident occurs despite those controls, you have documented evidence that you took reasonable care.
That evidence matters. It's the difference between a notice and an investigation. It's the difference between an investigation and a prosecution.
Understand Your Position
A free 20-minute call helps you understand where you stand on due diligence, what effort is required to strengthen your position, and what the next steps should be. I'll be direct about what you're facing and what's reasonably practicable for your business.
Most directors benefit from understanding what WorkSafe actually scrutinises. This call is about getting clarity, not commitment. No obligation to continue.
Book a 20-Minute CallIf you want a broader understanding of how WorkSafe enforcement works and what triggers investigation, read my guide to responding to WorkSafe Improvement Notices. For businesses that need ongoing support with OHS systems and incident investigation, OHS consulting helps you build systems that withstand scrutiny.
Dhawal Patel is a former WorkSafe Victoria Inspector and ISO 45001 Lead Auditor. He spent years assessing director and officer conduct during investigations. He founded RAS-OHS to help Victorian business owners understand what WorkSafe actually looks for, respond to enforcement notices, and build OHS systems that are defensible.
