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Taking steps when workplaces become risky

1 September 2015

Support staff have been used in some schools ... on occasions to protect the teachers

Some five-year-old schoolchildren in the Northland region are so angry they kick and bite teachers at the slightest provocation we are told. Other behaviour has included throwing books and chairs. One child apparently threatened to kill a principal.

Pat Newman, principal of Hora Hora Primary School in Whangarei and the president of the Principals’ Association covering much of the Northland area, reports that the problem is getting worse.

Safety issues and stress caused by these young people was the main issue raised by 14 per cent of principals surveyed by the Principals’ Association in the North.

Support staff have been used in some schools not only to support these pupils, but also on occasions to protect the teachers as well as other children.

Clearly Pat Newman is concerned for the security of principals and teachers in the Northland region, as well their pupils, and is seeking more government support or protection.

While readers in the Wellington area may be shocked to read of this behaviour in Northland schools, many will be familiar with the fact that those working in the public service are often subjected to intimidatory and violent behaviour by some members of the public.

Readers will remember the Work and Income shooting in late 2014 where a member of the public entered the agency’s building in Ashburton and shot three members of staff, killing two of them.

It has recently been reported that there has been an explosion in the number of assaults of Work and Income staff. In the year ending June 46 of its staff were seriously assaulted and 413 beneficiaries were trespassed.

Given the nature of their job and function, those in the public service have little option but to manage people with these behavioural problems as best they can, but does New Zealand employment law offer any recourse for public servants facing violent people?

It is certain that under the Health and Safety Act a person may be considered a hazard or “serious hazard”.

One demonstration of this was seen at the Hillmorton psychiatric hospital in Christchurch in 2000. Staff working at the hospital walked off the job for one hour because of their perceived danger of working with one particular psychiatric patient. The person had seriously assaulted two male staff members in the past and the workers complained that the person was becoming increasingly intimidatory, hostile and unpredictable towards them.

After the employees walked off the job, and effectively went on strike, the employer sought an injunction to restrain them from repeating the behaviour.

The court, relying on untested evidence, held that the workers had a strong case justifying their actions on the basis that the patient was too physically dangerous to be treated at that particular site due to the systems the hospital had in place.

The injunction was not awarded, although a full hearing was arranged to determine the exact nature of the risk to staff and the adequacy of systems to deal with this.

Prisons are also an obvious area of danger for workers. In a case taken by Corrections Association New Zealand a new manning policy was put to the test in 2004.

Corrections officers claimed they were at risk of serious harm because of the new manning levels, and in the case of Rolleston Prison, they succeeded with their argument.

The Employment Court held that inmates constituted a hazard, if not a significant hazard, to the health and safety of corrections staff.

However, the court found that in the case of prison officers the risk of harm is not one that can be eliminated or even completely isolated. The courts therefore considered the sufficiency of steps taken to manage the risk. At Rolleston Prison it was insufficient.

The court found that one incident demonstrated that lower manning levels there were inadequate. Two officers had to leave standalone units to respond to an incident at another unit where an inmate was  “at large”.

Although the decision to leave the standalone units unattended was done with the best intentions, the courts found that the fact that senior offices felt they had to ignore the rules to respond to the incident illustrated that there was an insufficient number of corrections staff at the prison.

In the case of other prisons, the court did not think the policy breached health and safety regulations.

Within schools and the public service, the risk to staff may not be so obvious. However, it is important to identify these risks, and if a person or groups of people are identified as a hazard, then reasonable steps should be taken to manage this risk.

If staff do feel a dangerous person has not been adequately managed, refusing to perform work is now more closely controlled by the Health and Safety Act. An employee may refuse to do work if they believe there is a likelihood of serious harm to themselves.

Good faith would require an employee raise an issue with their employer first, and after refusing to do the work, they must as soon as practicable attempt to resolve the matter with the employer. If the matter isn’t resolved, they must have a reasonable basis to believe that the work will cause serious harm to them.

Sensibly, an employee may not refuse to work where the work by its nature either inherently or usually carries an understood risk of harm. If the risk materially increases beyond that which was understood by staff then they are probably able to refuse to perform the particular work.

Failure to manage this risk may also result in the employer being prosecuted. WorkSafe in March of this year laid a charge against the Ministry of Social Development for failing to take all reasonably practicable steps to prevent the Ashburton shooting. The matter is still before the courts.

Readers will not be surprised by Work and Income workers, psychiatric hospital workers or corrections officers being in somewhat dangerous employment. Many, however, may be somewhat astonished that in Northland, the behaviour of some primary school children has caused concern for the safety of staff and students.

Given that this hazard has been identified, many will no doubt have strong opinions regarding what are the reasonable steps that should be taken to manage this risk.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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