Health and Safety - Still a Key Issue for Employers

Health and safety dialogue has been largely dominated by COVID-19 and vaccination issues in recent times, to the point that ‘traditional’ health and safety issues have taken somewhat of a back seat.  However, employers still need to ensure their wider health and safety obligations are met.  In this update we provide a refresher of some key issues, to help keep them front of mind.

Employees’ failure to follow instructions may not avoid liability

In WorkSafe v Kerr Construction Whangarei Limited^[1], an employee of a commercial construction company suffered an accident while he and another worker were removing ceiling air conditioning units using mobile scaffolding. While doing so, the weight of one unit and its sudden release caused the employee to lose balance, and hit his head on the concrete floor.  The employee suffered multiple skull and chest fractures, as well as serious brain injury.

Prior to the accident, there had been discussions with the employee as to how the removal was to take place and it was agreed an automated genie lift would be required.  Despite this, the genie lift was not used.  Had this occurred, the accident would likely not have occurred.

As a result of the employer’s guilty plea, the Court imposed a fine of $210,000 and ordered emotional harm reparation of $30,000 for the employee.

Of key significance in this case was the employee’s decision to not follow instructions that resulted in the accident and his own injury. Although employees expressly owe duties under the Health and Safety at Work Act 2015^[2] to take reasonable care for their own health and safety, the health and safety of others and to follow reasonable instructions, a company’s health and safety policy is only as good as its implementation.  Employers cannot solely rely on assumptions that instructions will be followed. All employees need to be trained in health and safety and be committed to prioritising it. As the Court said in its decision, employees are agents of the company and the company takes on their decisions itself.

Trial by media

Although it is widely known that WorkSafe are responsible for prosecuting health and safety breaches by New Zealand employers, increasingly employers who have failed in respect of their duties are also facing significant PR backlash once the story reaches the media.  This can create additional interest from WorkSafe.

By way of example, after a whistleblower and subsequent 1News investigation shone a light on systemic health and safety issues at Talley’s Group’s Ashburton premises, WorkSafe announced that it would be looking at “every aspect of the Talley’s Group’s health and safety performance” and would “liaise with other regulatory agencies as appropriate”.  As the coverage was not connected to any specific incident or prosecution, it demonstrates the power that media coverage can have.

Further media reports demonstrate that in the seven months since the review began in July 2021, WorkSafe inspectors have issued 28 enforcement notices to Talleys under the Health and Safety at Work Act 2015 and the Board has agreed to a Safe Plus review, which is a voluntary self-assessment tool focusing on leadership, employee engagement and risk management.

Directors may be personally liable for breaches

In October 2021, WorkSafe issued a warning to company directors that they may face prosecution personally if they are not fulfilling their obligations under the Health and Safety at Work Act. This followed a decision by the Tauranga District Court, in which Kimberley Tool and Design (NZ) Limited and a director were each convicted and fined following a crushing incident involving a worker in November 2018. The worker had two fingers partially amputated as a result.

A WorkSafe investigation found that the metal press was not properly guarded nor did it have an emergency stop button. There had also been a history of issues with the machine but the hazard had not been properly identified by the company. The company’s health and safety inductions and training were described as “haphazard and undocumented” and there was no evidence the injured employee had actually received proper training on using the metal press.

The company had two previous convictions for similar incidents and at the time of the third was non-compliant with three WorkSafe Improvement Notices issued as a result of not implementing a health and safety manual, having inadequate safe operating procedures, and training inadequacies.

WorkSafe said that with the company’s history, the director would have been on notice that he needed to address the ongoing health and safety shortcomings in the business and failed to do so. He was fined $35,000 and the company was fined $120,000.  Reparation of $30,000 was also ordered.

This demonstrates that directors need to take their responsibilities and due diligence obligations under the Health and Safety at Work Act seriously, or they may face consequences personally. Training and regular refreshers on health and safety duties are both valuable and necessary across all levels of an organization, including both governance and operational elements.

WorkSafe’s position on this case is that “Directors have explicit legal duties to undertake due diligence on their company’s adherence to health and safety obligations and failing to do so not only puts their workers at risk, but it also puts them in our sights.  As governors of their businesses, they have more ability than anyone else to influence their business’ operations to ensure they’re taking all the steps required to protect workers and others on their sites from health and safety risks. If they’re not doing so, they’re failing in their duties.”

Remote working

The definition of “hazard’ in the Health and Safety at Work Act expressly includes behaviour that can cause harm arising from mental fatigue.  Further, “health” is defined as meaning both physical and mental health.

With flexible working becoming the ‘new normal’, employers need to ensure they properly discharge their health and safety duties in a remote work setting.   Employers also have obligations under the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016^[3], to manage risks to the health and safety of a worker who performs remote or isolated work.

In terms of physical home working environment, the more time an employee spends at home, the more onerous the steps that will likely need to be taken by an employer to ensure it meets its primary duty o care.   At a practical level employers should, at the least, provide guidance on how to best set up a workstation.  It may be necessary to go further and audit workstations with the use of photographs or arrange physical occupational assessments.

Not everyone reacts in the same manner with remote working.  While some employees thrive, others can find this distressing.  In terms of addressing the mental wellbeing elements of remote work, social isolation risk can be mitigated by measures including:

• Regularly checking in with staff;
• Ensuring staff are not having issues with accessing technology to complete the work;
• Setting realistic and clear instructions on workload, roles and task allocation and timelines;
• Closely monitoring workloads and the periods of time employees are on-line;
• Checking that work can be successfully completed remotely, and adjusting the task if required;
• Checking in to ensure employees feel connected;
• Keeping communication lines open; and
• Encouraging employees to prioritise their health and take care of themselves.

Contact

This is a complex area of law, and it is important that everyone in an organisation knows the role they play in ensuring health and safety obligations are met. For any health and safety questions you have or assistance you need, please reach out to our Employment team.

1 - [2021] NZDC 22782

2 - Section 45

3 - Regulation 21