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Worksafe visits needn't be falls from grace

6 July 2016


Most readers will know that on 4 April 2016 the Health and Safety at Work Act came into force in New Zealand.

New obligations, new offences and much higher penalties are all part of the package in this new scheme intended to protect people from harm.

What you may not be ready for is a WorkSafe investigation at your place of employment.

New Zealand's health and safety performance is poor compared to comparable developed countries.

Every year an average of 50 to 60 work-related deaths and over 3000 serious injuries take place on our shores.

Along with the new Act, WorkSafe aims to address this troubling issue.

WorkSafe assessments are a directed effort, focusing mostly on industries considered 'high risk' such as agriculture, forestry, construction, manufacturing, and perhaps surprisingly, adventure activities.

So what can a workplace investigation mean to you, the reader?

Very recently the Whangarei District Court ordered Chris Angus to pay $51,000 in fines and reparation.

Mr Angus was the sole shareholder and director of 'AE Fun Park' which Moses Tohu visited in December 2014 for his work Christmas function. While at the park Mr Tohu rode the flying fox without supervision from staff at the park and sadly fell to his death.

Unsurprisingly, WorkSafe investigated this tragic death.

Mr Angus told the investigator that there was a padlock on the flying fox to ensure no one used it and Mr Tohu must have undone it.

Mr Angus went so far as to demonstrate how Mr Tohu must have overcome the padlock.

Further investigations revealed that there was no padlock at the time of the incident and Mr Angus had retrieved the flying fox, attached a padlock and sent it back down the zipline in order to hide the truth.

WorkSafe charged Mr Angus with obstructing, delaying, hindering or deceiving a health and safety inspector and he was convicted.

When an incident occurs, management and workers should secure the scene and leave it as untouched as possible.

It goes without saying that no one should interfere with an investigation lest they face the same fate as Mr Angus.

Anyway it is obviously a wrong thing to do regardless.

Additionally, the new legislation imposes an obligation on all health and safety duty holders to give reasonable assistance to WorkSafe inspectors to enable the inspector to undertake their investigation.

Workplace investigations are not limited to cases of physical injuries but can also involve cases of 'burning out' and other less obvious workplace injuries.

All employment involves a degree of stress but in some circumstances the consequences of extreme stress or fatigue could be classified as serious harm and need to be addressed by management.

It is always easier to ensure workplaces are safe in the first place by taking preventative action rather than deal with the aftermath of employees being killed, injured or burnt out.

Risks can be managed by identifying what poses the greatest threat to the safety of workers or visitors and removing the source of the risk, minimising the risk, or seeking advice from a health and safety professional.

Employers should engage with their workers throughout the process of assessing risks, and the method of control implemented should involve a 'living' system of checking the risk that becomes an ingrained part of business as usual.

Often, despite our best efforts, people do not do what they ought to and even when they do, accidents can still happen.

However, you can ensure that you never mislead or lie to an investigator, and never interfere with an accident scene.

It is always best to cooperate with any investigation as any other approach is taken at your peril, as Mr Angus found out.

The new legislation has now been in force for some time and both management and everyday workers will be expected to educate themselves as to their obligations.

Time spent doing so is well-spent as health and safety is in everybody's interest.

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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