Conviction of a contractor for safety offenses despite the risk of losing his license
Jul 24, 2019
By: Adv. Shlomi Hadar – John Geva, Hadar & Co., Attorneys
The National Labor Court heard the appeal of a contractor against the State of Israel (hereinafter: “the respondent”). The judgment was delivered in February 2019 by Hon. Vice President Ilan Itach, Hon. Judge Lea Gliksman, and Hon. Judge Roee Polyak.
In January 2017, a safety inspection was conducted at a construction site where the appellant worked, and safety violations were observed. Following the inspection, an immediate safety order was issued, requiring that the loading of all types of cranes be carried out by a “qualified signalman” who was certified and trained in cargo rigging and signaling methods.
One month later, a follow-up inspection was conducted at the site to monitor compliance with the order. It was found, however, that a tower crane was operating without a qualified signalman despite the issued order.
As a result, the appellant was charged with violating a safety order, failing to fulfill the supervisory duty imposed on an office-holder in a company, and operating a tower crane without a qualified signalman.
The appellant argued that he was the sole breadwinner of his family, supporting his three children who live with him, had no prior criminal record, and had committed only a single violation—a one-time incident of operating a tower crane without a qualified signalman. He further argued that this isolated incident does not indicate that he disregards workplace safety laws or the welfare of his employees.
Moreover, the appellant claimed that he acted immediately to rectify the violation and sent four employees to a signalman training course.
Additionally, he argued that a conviction could severely affect his profession and earning capacity, given the provisions of Section 11(a) of the Contractors’ Registration Law, which requires notifying the Registrar of Contractors about any conviction, and Section 8 of the same law, which stipulates disqualification and cancellation of registration in the Contractors’ Registry due to a conviction. Therefore, there was a very high risk that the appellant’s license would be revoked.
Attorney Shlomi Hadar – John Geva, Hadar & Co. Law Firm
The National Labor Court ruled on a contractor's appeal against the State of Israel (hereinafter: "the Respondent"). The ruling was issued in February 2019, by the Honorable Vice President Ilan Itach, the Honorable Judge Leah Glicksman, and the Honorable Judge Roy Poliak.
In January 2017, an inspection visit was conducted at a construction site where the appellant worked and safety deficiencies were observed. Following the visit, a valid safety order was issued by the commanding officer, stating that loading of loads on cranes of all types would be done by a "certified signalman" who was recognized and instructed in methods for tying and suspending loads, including giving signals.
A month later, another inspection visit was conducted to the site to monitor the implementation of the order, but it was found that a tower crane was working on the site without a certified license, despite the order that had been issued.
As a result, an indictment was filed against the appellant for violating a safety order, violating the supervisory duty imposed on an officer in the company, and working on a tower crane without a certified license.
The appellant claimed that he is the sole breadwinner in the family and supports his three children who live with him, that he has no criminal record, and that he was convicted of one single violation and one single incident of working on a crane without a valid license. Furthermore, this is a single case and therefore does not indicate that the appellant disregards occupational safety laws or his employees.
Moreover, according to the appellant, he acted immediately to correct the violation and sent four employees to an ethics course.
Furthermore, his conviction could lead to significant harm to his profession and his ability to earn a living, given the provision of Section 11(a) of the Contractors Registration Law, which requires informing the Contractors Registrar about a conviction, and Section 8 of the Contractors Registration Law, which stipulates disqualifications for registration and cancellation of registration in the Contractors Register due to a conviction, so there is a very high chance that the appellant's license will be revoked.
The court's decision
The regional court ruled that there were no circumstances in the case at hand that justified a deviation from the general rule regarding conviction, because it was not proven that the harm that would result from the conviction was so great that it outweighed the public interest inherent in his conviction . Therefore, the appellant filed an appeal against his sentence, claiming that the regional court erred in determining his sentence because it ignored the risk of his contractor's license being revoked.
The National Court addressed the issue of punishment without conviction. According to the ruling, the authority to avoid or overturn a conviction is exercised by the court while maintaining the starting point according to which a person whose guilt is proven in a criminal proceeding must be convicted in court. In addition, implementing the starting point enables a proper and equitable law enforcement process and conveys a desirable deterrent message. The court also added that the court will avoid a conviction only in cases where a substantial gap may arise between the severity of the harm of a criminal conviction on the defendant himself and the benefit that will accrue to society and the public interest from the existence of that conviction.
Also, in connection with the claim that the appellant may lose his license, it was determined that this claim is essentially similar to the claim of impairment of the ability to access tenders for the provision of services to public bodies. As it was previously ruled that the impairment of the ability to win tenders is "a by-product of any conviction in similar circumstances."
Moreover, the court emphasizes the importance of legislative provisions regarding occupational safety and health, which aim to protect the lives of workers, bearing in mind that in recent years the phenomenon of occupational accidents, some of which are fatal, has expanded in the construction industry. Therefore, the ruling states that the importance of increasing enforcement of occupational safety provisions cannot be overstated, since an integral part of enforcement is increasing deterrence.
It was therefore determined that avoiding a conviction for the purpose of reducing the economic damage to the corporation or the corporation's manager as a result of a conviction undermines the goal of increasing enforcement, one of the ways to achieve which is effective punishment that creates deterrence.
The court therefore ruled that, in light of the seriousness of the offense and the importance of creating deterrence when it comes to safety offenses, with an emphasis on the construction industry, and in light of the fact that the appellant did not act in accordance with the provisions of the safety order issued following the inspection, but only after investigating the appellant for committing the offenses at the time of the second inspection, did the safety deficiencies take action to correct them, the rate of the fine imposed on the appellant should not be reduced and he should be convicted despite the risk that he will lose his license.
This ruling shows the great seriousness that the courts today attribute to safety violations in the construction industry, in light of the increase in the number of fatal accidents that have occurred on construction sites in recent years, even though these violations can lead to license revocation, with all that this implies.
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