An employer's duty to ensure workplace safety under OSHA only extends to working hours, and liability cannot be imposed for incidents occurring outside of this timeframe.

[1] This is an appeal by the Appellant against the order of the learned Sessions Court Judge (SCJ) in discharging and acquitting the Respondent at the end of the defence case for an offence under s 15(1) of the Occupational Safety and Health Act 1994 (OSHA).

[2] The brief facts of the case is that on the 6th October 2010, the Department of Occupational Safety and Health (DOSH) received a complaint about an incident occurred at Sri Kamusan on the 5th October 2010, about 5 pm. On the 7th October 2010, two officers from DOSH went to Sri Kamusan Estate to conduct accident investigation. From their initial investigation, it was found out that:-

(i) The accident involved one victim, that was the late Junaidi bin Maswan (the deceased);

(ii) Before the accident, the deceased was sitting on the top of the tractor's wheel cover, and fell off from the tractor when the tractor passed through a sharp bend;

(iii) The deceased worked for Sri Kamusan Sdn Bhd (Respondent);

(iv) The Respondent had failed to supervise the use of tractor as a means of transportation of workers to the workplace, causing the deceased to ride on the said tractor and consequently fell off the tractor when the tractor passed through a sharp bend. The deceased was pronounced dead on 6.45 pm on 5th October 2010.

[3] The Respondent was then charge in Court and the amended charge read as follows:-

"Bahawa kamu, pada 05 Oktober 2010, lebih kurang jam 5:00 petang di Phase 3, Sri Kamusan Estate, Locked Bag 34, 90009 Sandakan, Sabah sebagai majikan, telah gagal untuk menjalankan tanggungjawab kamu sebagai yang dikehendaki dibawah s 15(1), Akta Keselamatan dan Kesihatan Pekerjaan 1994 iaitu gagal untuk memastikan setakat yang praktik, keselamatan, kesihatan dan kebajikan semasa bekerja semua pekerja kamu, semasa bekerja, iaitu traktor dan trailer yang disediakan sebagai pengangkutan pekerja khususnya Junaidi Bin Maswan (No paspot: AN 854348) tidak selamat untuk digunakanke tempat kerja. Dengan itu, kamu telah lakukan kesalahan dibahawa s 15(1) Akta Keselamatan dan Kesihatan Pekerjaan 1994 dan jika disabitkan kesalahan boleh dihukum dibawah s 18 Akta yang sama."

[4] Section 15 (1) of OSHA reads:-

"It shall be the duty of every employer and every self-employed person to ensure so far as is practicable, the safety, health and welfare at work of all his employees and that duty extends to:

a) The provision and maintenance of plant and systems of work that are, so far as is practicable, safe and without risks to health;

b) The making of arrangement for ensuring, so far as is practicable, safety and absence of risks to health in connection with the use of operation, handling, storage and transport of plant and substances;

c) The provision of such information, instruction, training and supervision as is necessary to ensure, so far as is practicable, the safety and health at work of his employees;

d) So far as is practicable, as regards any place of work under the control of employer or self-employed person, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of the means of access to and egress from it that are safe and without such risks;

e) The provision and maintenance of a working environment for his employees that is, so far as is practicable, safe, without risks to health, and adequate as regards facilities for their welfare at work.

[5] Although the Appellant had raised 9 grounds of appeal in its Petition of Appeal, the learned Deputy Public Prosecutor (DPP) in her submission which I agree tha