New Zealand: Employer Health And Safety.
Legal News & Analysis - Asia Pacific - New Zealand - Labour & Employment
24 September, 2016
Employee carelessness is no defence to an employer's obligation to take all practicable steps to prevent against reasonably foreseeable risks in the workplace.
Health and Safety Prosecution
Worksafe New Zealand prosecuted Waimea Sawmillers Limited ("Waimea") under the Health and Safety in Employment Act 1992 for failing to take all practicable steps to ensure the safety of its employees in the workplace. Mr Rolfe, Waimea's employee, injured himself when carrying out maintenance work on a conveyor system between two machines.
Mr Rolfe carried out the work in breach of Waimea's internal process. In particular, he worked without a "buddy" and breached the safety fence. He also failed to switch the machine off before working on it. Mr Rolfe accepted full responsibility for the incident.
Waimea appealed against the prosecution on two bases:
(i) the employee had deliberately breached the company's safety rules; and
(ii) Waimea had complied with the maintenance provisions in the relevant regulations.
Reasonable and practicable steps
The High Court did display "considerable sympathy for Waimea's predicament" but this sympathy did not extend to allowing Waimea's appeal. The court held that Waimea had failed to take reasonable and practicable steps by not installing a safety guard over the machinery. This was a cost effective and easily achievable solution to avoid injury to employees who could "foreseeably take shortcuts and behave contrary to common sense". Furthermore, there was a gap in the mesh fence around the machinery, the safety fence was low enough to step over and the mechanisms used to automatically break the circuit and stop the machine when the safety fence was breached were not working.
Waimea was found guilty and fined NZD 40,000 (approx. USD 28,000).
This case highlights the importance for employers of understanding where the risk in their operations lie, and taking proactive steps to protect employees from harm, including harm caused by themselves. Employers have an obligation to assess the risk of each hazard and put in place mechanisms to prevent reasonably foreseeable risks. This obligation is not tempered by an employee injuring himself through his own carelessness or stupidity or an employee being adequately warned and trained of the risks posed by a hazard. Solutions reducing the risk of hazards in the workplace which are easily achievable and cost effective should be used at all times, alongside the appropriate training and guidance of employees.
For further information, please contact:
Gareth Thomas, Partner, Herbert Smith Freehills