WorkSafe’s charging documents under scrutiny

General / 25 July 2017
WorkSafe’s charging documents under scrutiny

The High Court in WorkSafe New Zealand v Talley’s Group Limited has scrutinised WorkSafe’s approach to the detail contained in their charging documents.  The case sets out that WorkSafe must include details of all alleged failings in their charging documents.

A Talley’s employee was stacking empty bulk bins using a forklift at a vegetable processing plant in Ashburton.  Bins on the forklift toppled off and struck another employee, causing severe injuries that have left her in a wheelchair.

WorkSafe’s charging document was served on Talley’s days before the six month time limitation was up (Note: the Health and Safety at Work Act 2015 (Act) allows WorkSafe a 12 month time period from the date of the event to decide whether it will prosecute).

The charging document simply said Talley’s failed “to take all practicable steps to ensure that [the employee] was not exposed to hazards arising out of the operation of a Yale forklift.”  WorkSafe attached a summary of facts with the four steps that the company allegedly failed to take, relating to hazard assessment, forklift/pedestrian separation, the forklifts stacked five bins high and the methodology of the stacking.

Eight months later WorkSafe amended the charging document and served Talley’s with a much longer, more detailed set of steps it allegedly hadn’t taken.  Talley’s claimed that the new document represented a ‘vastly different and substantially increased series of allegations.”

Talley’s applied to the Court to have the prosecutions dismissed on the basis that to allow this approach from WorkSafe was to amount to a possible miscarriage of justice.

District Court
In the District Court Talley’s was successful in having the prosecution dismissed.

The District Court said the offence that was alleged including the particulars, must be clearly identified. These could be an act or an omission. “The vague wording of the charging document results in an outcome where [Talley’s] is not informed as to what they are required to defend; they must either guess the alleged failings or attempt to defend perfection.  [Talley’s] must be informed of the particular failings so that they are able to prepare their case and identify any defences relevant to each failing.”

The Judge said WorkSafe expansive/wide scope of the first charging document, leading to a more detailed approach later on was a “deliberate tactic” on the part of WorkSafe to get the prosecution laid within the required time frame.  She confirmed that it was undesirable that the prosecution can in effect lay further charges, indefinite in number and scope at any time up to the hearing, by taking deliberate advantage of its own non-specific wording in the original charge laid.

High Court
WorkSafe appealed the decision.

In its decision the Judge agreed that WorkSafe’s approach had been flawed but that the charge should not have been dismissed and that the threshold to grant a dismissal of the proceedings had not been met.  He commented that there was public interest in having such serious alleged failures by the company brought to Court.

In the future, the Court commented that if WorkSafe wants to amend or extend the particulars in a charging document, it is necessary that it seek the Court’s leave to do so.

The Judge said that the charge would be confined to the document originally served and its attached summary of facts.  The case has been sent back to the District Court to be heard.

WorkSafe’s approach received a fair amount of criticism by the Courts.  WorkSafe must include a detailed description of the alleged failings in the charging document itself so the company being charged can decide how to plead and prepares its arguments. Further, WorkSafe cannot simply amend their charging documents and re-serve these, it can only do so with the Court’s leave.

We expect that the result of this decision is that PCBUs and people facing possible prosecution will get more detail of charges at an earlier stage, which will assist in preparing an appropriate defence.

For help in dealing with WorkSafe, our team can assist.

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.
July 2017

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