Our German Desk
In a first for New Zealand, a Company Director has been sentenced to a custodial sentence (four months’ home detention) following a conviction under HASIE. His company was also fined $60,000.
In addition to this watershed case, a number of other high-profile prosecutions are keeping WorkSafe NZ firmly in the public eye, and the media spotlight.
First Custodial Sentence
The charges related to an incident in December 2013, in which Arthur Britton’s company, Britton Housemovers Limited, was moving a house under Mr Britton’s direction. The house crashed into a live powerline, which fell to the ground. An employee used a wooden stick to move the still-live line off the road, into a ditch, where a number of sheep and lambs, and two dogs, were electrocuted. The shepherd narrowly avoided being electrocuted when he reached out to grab a dead sheep, but was pulled back by the farmer.
The house-moving convoy moved on, but the farmer and the shepherd chased after the convoy and told them what had happened. Following a verbal dispute, a Britton Housemovers employee returned to the scene to put cones down. Even after this argument, no Britton Housemovers employee called the appropriate authorities – they were called by the farmer.
It is clear that Mr Britton and his company fell far short of their obligations in this very hazardous situation. The large fine and the sentence of home detention reflects the gravity of the wrong-doing, and the potential harm that could have been caused.
It is worth remembering that imprisonment of up to two years (and/or a fine of up to $500,000) is a possible consequence where a person knows that an action or omission is likely to cause serious harm and does it anyway. In this case, Mr Britton was charged as a Director, who had “directed, authorised, assented to, acquiesced in, or participated in” the breach.
Under the forthcoming changes to health and safety legislation, not only will fines and potential sentences of imprisonment be more severe, but Directors will have positive due diligence obligations. Under these obligations, even a Director who has not been involved in an accident or breach can be prosecuted for failing to meet his or her due diligence obligations.
Charge laid against Ministry of Social Development
In September 2014, two Work and Income staff were shot and killed at the Ashburton office of the Ministry of Social Development (MSD), and another staff member was injured.
WorkSafe NZ has laid a charge against the employer, MSD, under section 6 of the Health and Safety in Employment Act (HASIE), alleging that it failed to take all practicable steps to ensure the safety of its employees while at work.
WorkSafe has declined to provide any further information about the charge, or the investigation, but it is likely that the charge will relate to MSD’s alleged failure to deal with the hazard of violence occurring at work, or a failure to develop procedures for dealing with emergencies.
This is an interesting concept, and WorkSafe’s decision to prosecute MSD has already caused a fair amount of social media comment. However, an employer’s obligation to manage the risk of violence in the workplace is not a new concept. Under the 2002 amendments to HASIE, it was clarified that a person’s behaviour can be a hazard, as an actual or potential cause or source of harm.
Last year, security firm CNE Security was charged, but acquitted, in relation to allegations that it had failed to ensure the safety of its employee, following the murder of a security guard on night shift at a site in West Auckland.
WorkSafe already provides guidance to employers on minimising the risk of violence at work.
It will be interesting to see whether MSD defends the prosecution, or pleads guilty. We’ll keep you posted.
Fireworks at Eden Park
WorkSafe New Zealand has also filed charges against a pyrotechnics company, following the incident at the All Blacks-Australia test match at Eden Park in August last year.
The pyrotechnics display before the match apparently did not go according to plan, resulting in shrapnel spraying crowd members, with a member of the public being knocked out, and suffering a 6cm gash to her head.
Once again, WorkSafe has declined to provide further detail on the charges. However, it is not difficult to see how fireworks, particularly in a crowded environment like a rugby stadium, could be a hazard, and would need careful management.
Conviction and fine for Idea Services
Following on from the tragic death of a high needs teenager at a Palmerston North respite care home run by Idea Services, the organisation has been fined $63,000 and ordered to pay reparations of $90,000 to the boy’s family.
In January 2014, Nathan Booker drowned after being left unsupervised in the bath. The organisation subsequently entered a guilty plea to WorkSafe’s charge of failing to take all practicable steps to ensure that the actions of an employee did not cause harm to any person.
The case highlights the responsibility that companies have to anyone who may be harmed by actions or inactions of their employees. It is important to not only consider how your employees could hurt themselves, but how their actions could impact on visitors, customers, or members of the public.
If you would like further information about your obligations under the current legislation, or the forthcoming changes, please check out our earlier article or contact Alison Maelzer or Jim Roberts.
