Trucking deaths on the rise but safety whistleblower ignored then prosecuted

Trucking deaths are rising in Australia amid worries over corner-cutting on safety and driver fatigue. Yet, for whistleblower Roxanne Mysko, exposing it means persecution. Andrew Gardiner with the investigation.

Whistleblowers like David McBride and Richard Boyle incurred the wrath of vengeful bureaucrats despite the existence of protections spruiked as the guarantor of transparency and a bulwark against corruption.

They are not alone. Courageous informants from across Australia have risked all over the years, with decidedly mixed results.

And what of lesser known whistleblowers in, say, the transport industry? Trucking deaths are on the rise in Australia, including among drivers like Billy-Joh Watts, whose tragic death sparked a media stampede at a high-profile inquest in 2022.

Can transport industry whistleblowers expect better protection from the courts and from relevant agencies like the Australian Securities and Investments Commission (ASIC)? Not if Adelaide grandmother Roxanne Mysko’s experience is any guide.

Shooting the messenger

An experienced safety compliance manager, Mysko, has told MWM of bullying, police involvement and court action that threatens to bankrupt and perhaps even incarcerate her in the coming weeks, following a brief and ill-fated stint at Express Cargo Services (ECS) of Port Adelaide.

MWM has also independently learned from sources of alleged safety issues at ECS – brought to the attention of the National Heavy Vehicle Regulator (NHVR), including:

• Fatigue among company drivers and subcontractors, who are alleged to have worked up to 26 days straight (the relevant law states drivers must have a 24-hour break every seventh day);
• No safety audits of 70 subcontractors from 2007 to 2020, many in violation of Chain of Responsibility (COR) requirements which began in 2014;
• No licence checks on 70 subcontractors;
• No vehicle maintenance audits over an extended period;
• Speeding by trucks supposedly limited to 90 km/h;
• No documentation for all COR safety procedures for any truck or freight movement anywhere in Australia.

If proven, such breaches of safety law can incur seven-figure fines.

Despite the purported protections of both whistleblower legislation and South Australia’s Work Health and Safety Act, Roxanne’s life was upended when ECS terminated her contract after just a few weeks on the job. In the weeks following her dismissal, sources say, it got much worse.

Roxanne’s unceremonious departure from ECS turned her from a paid safety monitor to an industry outsider with plenty to say.

What protections?

In its pamphlet on the subject, ASIC says protections under the Corporations Act and other legislation are designed to “encourage whistleblowers to come forward with their concerns and protect them when they do (so they can) play an important role in identifying and calling out misconduct and harm to consumers and the community.”

Angered by her sacking and confident she had full whistleblower protections, sources say Roxanne continued to liaise with safety authorities like the National Heavy Vehicle Regulator (NHVR). MWM has independently learned that she also sent copies to a partner company of ECS.

But the extent of those protections is anything but clear. In later correspondence with Roxanne viewed by MWM, barrister Christian Haebich expressed his “doubt that (Roxanne’s) post-employment communications were protected by the whistleblower laws.” Roxanne disputes this, citing opinions to the contrary from other legal practitioners.

ASIC has since made it clear in correspondence seen by MWM that copying the ECS partner company was a mistake: “that email was not sent to an eligible recipient” under whistleblower protections. In other words, what she wrote was open to potential court action by ECS.

Within days, MWM learned that ECS had a copy of her missive and, via court action, secured a warrant for police to seize what she described as massive quantities of documents from her computer and phone. The company, sources said, also brought civil action against her in the Adelaide Supreme Court based on their claim of breach of contract, defamation, injurious falsehood, and tortious interference.

Persecuting the whistleblower

Nearly four years and one appeal later, Roxanne has been hit with $350,000 in legal fees by her erstwhile employer (meaning likely bankruptcy) and, sources say, the possibility of prison time on Contempt of Court charges after she allegedly sent another email (in violation of a court order) to the same ECS partner company she says breached her identity.

Meanwhile, sources told MWM that the NHVR appears to have given ECS a ‘heads-up’ that they were coming to look at their operations before failing to take any meaningful action against the company.

After approaching ECS for comment, the company’s lawyers sent MWM excerpts of a court order preventing Roxanne from sharing her allegations, warning that “any other person who knows of this order and does anything that helps or permits [Ms Mysko to disobey it] may be … punished.”

MWM is not suggesting NHVR, ECS or its partner company have acted unethically or in violation of workplace or transport safety laws, and unless stated, has established the alleged facts around ECS’ safety record, opinions on the extent of whistleblower protections and subsequent conduct by the company, its partner and NHVR independently of Ms Mysko.

Failing whistleblower legislation

The case of Roxanne Mysko brings into sharp focus the limitations of whistleblower legislation.

For one thing, protections would appear to be at their maximum while you remain employed by the employer you’re reporting, as Mr Haebich suggested in the letter seen by MWM. In many instances, would-be whistleblowers are less likely to turn on an employer if they still work there while, conversely, being dismissed can be the very catalyst for coming forward.

Should losing your job curtail your rights and protections as a whistleblower?

Sources say Roxanne’s mistake in contacting an ECS partner company not covered by her protections stemmed in part from her not knowing the ‘fine print’ around whistleblowing, details which are often decipherable only by paying through the nose for a lawyer. Roxanne is not a woman of means, and it appears the last thing she was thinking of when alerting others to what she saw as safety issues at ECS – a public service, in her eyes – was having to pay for the privilege of doing so.

It turns out whistleblowing can be a costly proposition: it could cost you in lawyer’s fees before you proceed, and it could cost you much more if you get it wrong.

For her trouble, sources have told MWM that Roxanne and her family have been allegedly harassed. She’s had several breakdowns, lost her income, seen her job prospects severely diminished, incurred a six-figure debt, and faces possible incarceration for Contempt of Court. Roxanne told MWM:

I don’t laugh anymore, and have withdrawn from what was a very social busy life. I am now a recluse.

What’s more, Roxanne faces more bills if she is to mount privately-funded action to redress at least some of what she’s gone through.“You may have been protected (while employed by ECS) – such that your termination may have been unlawful,” Haebich wrote in correspondence independently confirmed by MWM.

She is in no position to privately fund such a counterclaim, and is on the lookout for pro bono representation.

While sources say the well-resourced ECS was able to terminate, achieve a police raid of and sue its former compliance manager within weeks of her unearthing what sources say is a mountain of safety malpractice, Roxanne Mysko was hamstrung in her ability to fight back. Not only by a lack of funds (she self-represented in court) but by the mistakes she made under whistleblower laws, which can confound all but a select few.

Meanwhile, those she thought would be in her corner – such as the NHVR – did little to address the alleged safety issues, sources add.

The system was quick to sanction Roxanne Mysko over a few pages of correspondence, but on a far bigger issue – the safety of Australia’s truck drivers – it’s claimed that the machinery of regulatory action has scarcely trembled.

“Let the whistleblower beware, lest they suffer my fate,” Roxanne admonished.

Editors note: MWM contacted NHVR for its position on this story, but the agency declined to comment for legal reasons.

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