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Recent WorkSafe prosecutions show an increasing focus on officers, including directors of small businesses, as discussed here and here.

A review of the cases, summarised below, highlights common failings by officers.  We can learn from these in getting due diligence and PCBU duties right, which is crucial given we are likely to see director prosecutions continue to increase following recent case trends which set due diligence standards.

Officer Obligations

The Health and Safety at Work Act 2015 (HSWA) recognises that everyone has a role to play in the health and safety of a workplace. Officers’ due diligence duties require proactive steps to ensure the PCBU complies with its obligations. WorkSafe can prosecute an officer, including directors and trustees, individually in addition to the PCBU where their failure results in the PCBU not meeting its duties.

Director of Civil Aviation v Sarginson [2019]

Here Mr Sarginson was convicted of two charges under the HSWA after a helicopter he was operating crashed and killed his co-director, Mr Edwards.

Mr Sarginson had overloaded the helicopter and upon entering bad weather decided to take the helicopter down through a hole in the cloud cover and place it in a “hover”. The helicopter was unable to sustain the hover and spiraled out of control, crashing, and killing Mr Edwards.

The Court found Mr Sarginson:

• increased the risk of harm significantly by overloading the helicopter;
• undertook a maneuver too advanced for his level of experience; and
• made decisions departing from the industry standards.

He was charged $100,000 in reparation payable to the victim, four months community detention and 350 hours of community work.

Ninos Limited and Mr Basile [2020]

Mr Basile was charged under the HSWA after a fishing boat sank.  At the time of the incident, the boat was substantially overloaded with fish and took on water, resulting in the sinking of the boat and the difficult evacuation of all crew.  Investigations revealed the boat had regularly been overloaded, sometimes as much as 20 tonnes.

The Court found that Mr Basile failed to:

• Identify the risk of overloading;
• Ensure that systems were in place to prevent overloading; and
• Ensure adequate training and instructions to the crew.

He was fined $47,000 (reduced from a starting point of $120,000 to avoid double punishment between Mr Basile and Ninos Limited).

Kimberly Tool & Design Ltd [2021]

Mr Parker, director, was charged under the HSWA after a worker caught his glove in a press machine, resulting in the amputation of two fingertips.

The Court found Mr Parker had failed to:

• Familiarise himself with industry guidance on the safe use of machinery; and
• Have a risk assessment undertaken by a competent person which would identify the risks, hazards, and controls regarding the press machine.

Mr Parker was fined $48,000 (reduced from a starting int of $80,000 due to mitigating factors).

Smoke Control New Zealand Ltd and Mr Kennedy [2021]

Mr Kennedy was charged under the HSWA after an experienced employee was fatally struck while using alternative equipment for an otherwise familiar task.

The Court found that Mr Kennedy failed to ensure:

• Smoke Control effectively implemented its health and safety policies and procedures;
• Workers were trained and competent in safe systems of work;
• The effective identification and management of hazards and risks (including hazard identification procedures being undertaken to starting work on new tasks); and
• Ongoing monitoring and supervision of workers to ensure continued competency in and compliance with safe systems of work.

Mr Kennedy was fined $31,500 (reduced from a starting point of $70,000) mitigating factors.

Message for employers

The common themes in each of the above cases include:

• Inadequate training of workers, including on how to mitigate or eliminate hazards and risks;
• Lack of knowledge of and departure from industry standards;
• Failure to learn from previous health and safety incidents; and
• Failure to identify hazards and implement controls adequately.

How we can help

At Copeland Ashcroft, many of us sit on or advise various Boards of Directors and/or Trustees.  We recognise the role that board members play in taking ultimate responsibility for health and safety and the challenges in keeping up with responsibilities in this tricky area.

To assist you as an officer to understand and meet your obligations, we can help with the following:

• Board support and governance advice
• Regular case law updates
• In house training
• Health and safety GAPs analysis
• Fixed price policies

For more information on these services click here or email admin@copelandashcroft.co.nz

Disclaimer: We remind you that while this article provides commentary on employment law, health and safety and immigration 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.