News and Publications

A recent prosecution of a school board of trustees highlights the legal intricacies and exemptions set out in the Health and Safety at Work Act 2015 (HWSA).

Facts

A teacher and student fell 3.9 metres from mobile scaffold.  The scaffold was being used to set up lights in the auditorium.  The teacher and the student suffered serious injuries including lacerations, fractures and brain injuries.

The school had no policies or procedures for dealing with working at heights. The risk of falling was not managed adequately nor was the involvement of students fully contemplated.

The District Court ordered the Forest View High School Board of Trustees (Board) to pay $100,000 in reparation and imposed a health and safety project order as an alternative to a fine.

Trustees of a Board

The HSWA contains several exemptions from liability, including for a trustee of a board of a school appointed or elected under the Education Act 1989 (Trustee).  While the Board was prosecuted as a PCBU, the individual trustees, as officers, were exempt from any personal liability.

The Trustees must still discharge their individual due diligence obligations, but if they do not, they are exempt from prosecution as an officer.  Trustees can still be prosecuted if they are a worker or other person in the workplace.

Tips for PCBUs on Volunteer Officers

Officers who receive no reward for their involvement at governance level (Volunteer Officers) are also exempt. Like Trustees, Volunteer Officers hold due diligence obligations, but cannot be prosecuted.  To ensure Volunteer Officers maintain their status as volunteers and immunity from prosecution, they need to be cautious of any money exchanging hand outside of a direct reimbursement for out of pocket expenses.  For example, carefully consider any one-off ex gratia payments at the end of the year, or token payments for attendance at meetings.

The status of an entity and their individuals can often require detailed analysis.  If you have questions about whether your entity is a PCBU under the HSWA, you’re unsure who an officer within that PCBU is, or whether there are any applicable exemptions as to liability, contact the team.

Disclaimer:  We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations.  Please seek legal advice from your lawyer for any questions specific to your workplace.