Whakaari sentencing: tour seller guilty
Employment Law, Health and Safety, Cases, Acts, General / 15 June 2022
Following a WorkSafe investigation, Inflite Charters Limited (Inflite) was fined $227,500 for failing to ensure that reasonably practicable steps to ensure the safety of visitors or tourists to Whakaari White Island we taken under Health and Safety Work Act 2015 (Act).
Inflite promotes and sells trips to tourists and visitors visiting many destinations including Whakaari White Island. These trips are sold as Inflite’s own but Inflite engages local subcontractors to conduct tours on these trips. On 9 December 2019 Whakaari White Island erupted and 22 people lost their lives.
Although Inflite had no customers on the Island, this was considered ‘luck’ and WorkSafe still investigated. WorkSafe found Inflite failed to ensure that adequate risk assessments had been done. It did not have safety management systems for tours to Whakaari.
Although the subcontractors are better placed to do these health and safety management plans and assessments, the District Court found Inflite cannot contract out its obligations under the Act and it needs to ensure the contractors and subcontractors involved have the appropriate systems and processes in place to ensure that regular and thorough risk assessments are being completed.
Inflite was the face of the tour as far as the customer was concerned. Inflite was taking the customers money and was the point of contact for customers. The judge called Inflite a ‘one-stop-shop’ for the customer to satisfy that it was safe to go. Customers would not be expected to investigate the safety and risks of all the activities included in a tour, they would be expected to rely on the Company organising the tour and expect all safety and risk information to be provided by that Company.
Message for Employers
This case highlights the importance in having thorough Risk Assessments and Health and Safety Management Plans that ensure your business is not failing to account for all possible risks in the workplace, even if you may not consider it your workplace. If your business is subcontracting out work it cannot rely on those subcontractors to advise on the safety and risks, responsibility must be taken to ensure the subcontractors are doing what is required of them.
It is crucial, especially given these increasing sums for fines under the Act that employers take the safety of their employees, clients and customers seriously and seek advice. Please contact us if you have a Health and Safety Management Plan or Risk Assessment that you would like reviewed, or if you do not have these and we can draft one for you.
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.