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Emergency volunteers juggle work demands

18 July 2018

The world has been following the story of the 12 young Thai footballers and their coach trapped deep within the Tham Luang caves. A captivating story of children fighting for survival and great courage by the volunteers who have risked their own lives to save them.

The boys became trapped by flood waters about 3.2 km from the cave's entrance after wading in to "try go to the end of the tunnel".

The youngest boy was only 11 and the oldest, the coach, was 25. They were missing in the caves for 10 days before their whereabouts was known. They were in the caves for a total of 18 days. There was a very real danger that they would die. They were very brave.

The efforts to rescue the boys have shown the best of humanity. Cave-diving experts from around the world travelled to Thailand to assist with the rescue mission. A former Thai Navy Seal died after running out of air while making the journey back to the cave's entrance. The caves are precarious and it took the divers six hours to get to the boys and five hours to get out. Two expert divers were needed to accompany each of the boys on the journey out.

A Kiwi living in Bangkok, Ross Schnauer, was part of the final rescue and spent seven hours carrying the boys on stretchers over rocks to safety. Expert divers from the United States, China, Australia, and the United Kingdom assisted with the boys' rescue. Among them is an IT consultant from Bristol, a retired firefighter from Coventry, and an anaesthesiologist from Adelaide.

Although they are expert cave-divers, most of the people are assisting in a voluntary capacity and have everyday jobs.

All of these factors meant that the world was gripped by the unfolding drama in Thailand, which could at any stage have meant the death of some or all of the children or indeed their rescuers.

What would the rescuers' employers have thought of their employees' rapid departure to Thailand to take part in a highly-publicised rescue mission? Workers must discuss their involvement in such a mission with their employer if it means they will be away from work. If a worker does not show up to work for several days and the employer cannot contact them, the employer may dismiss them for abandoning their employment. However the divers' employers must have known of their whereabouts, perhaps even if only from the media coverage of the rescue.

What about workers who volunteer for search and rescue work, perhaps as coastguard workers or as firefighters? They would frequently need to drop work for emergencies which receive far less public interest. Eighty per cent of New Zealand's Fire and Emergency Service are volunteers. Search and Rescue has more than 3000 trained volunteers and the Coastguard has 1800 volunteers crewing 75 rescue vessels around the country.

Despite this, New Zealand does not have specific protections for " workers" who volunteer for these important organisations. Therefore workers may find themselves caught between their duties to their employer and their commitment to serving the community. Surely there will be occasions where your primary employment must come first.

Some emergency service volunteers might go out every time there is an alert, resulting in a lot of time away from work. It is understandable that this might start to impact the business. At what point can the employer say they have had enough?

In New Zealand, workers have a fundamental duty to obey all lawful and reasonable instructions from their employer. If the worker does not have an entitlement in their employment agreement or a policy to leave work to volunteer, the employer can instruct them to continue working rather than attend an emergency. If the worker then leaves, the disobedience could be misconduct and result in a warning or dismissal.

Surely most employers wouldn't feel comfortable alleging misconduct where a worker has acted in the public interest and saved lives. If an employer tried to dismiss a worker for travelling to Thailand to rescue young boys, they would be brave (or foolish) in the extreme. If public interest in the boys' rescue is anything to go off, the employer would face significant public criticism.

The same would be likely if a New Zealand employer dismissed a worker for attending an emergency. Morally, employers should give reasonable support to workers who are part of voluntary emergency services. From an employment law perspective they may be on shaky ground if they do anything else.

While all 12 Thai boys and the coach are now safe, reports say it is a miracle the rescue succeeded. With such a slim chance of success, the decision to go ahead with rescue attempts will not have been easy.

What if people were trapped in the Waitomo caves in New Zealand? Health and safety laws would play an important part in deciding whether a rescue mission was carried out.

After all, for years health and safety concerns have prevented re-entry to the Pike River mine to recover the bodies of the men who died there. Following Pike River and the various investigations readers might expect rescue missions in this country to now be very risk averse.

Yet if someone's life is in danger, of course you do whatever you can to save them.

Police and firefighters put their lives at risk in the line of duty every day. The existence of a risk of death is not automatically a breach of health and safety laws.

In a case involving River Valley Venture a junior guide died after he was thrown from a raft, became trapped under water, and drowned. The District Court convicted the company for breaching health and safety requirements. However, on appeal, the High Court quashed the conviction as it was not clear River Valley Venture had failed to take all practicable steps to prevent death. There would be a risk of death regardless of the steps taken. The question is at what point does the risk of death become so great the enterprise should be abandoned?

In a situation like the Thai caves, the important thing is to take all reasonably practicable steps to ensure the safety of those carrying out the rescue mission. What may be reasonably practicable in a time-pressured situation where lives are at stake will look different to where there is ample time to address the risks and doing so will not affect chances of survival.

The rescue of the Thai football team was clearly very well planned. International cave-diving experts were brought in. Prior to the mission, the rescuers conducted practice drills to safely evacuate the boys. Rescue attempts did not start until a large amount of water had been pumped out.

Of course it would be possible to carry out such a rescue exercise in New Zealand. It would be crucial to take steps to minimise the risk to rescuers and maximise the chance of survival for the trapped. That does seem to be what took place in Thailand. Although a former Thai Navy Seal sadly died, the ultimate result was the survival of all 13 of the trapped people. As you read this the rescue mission will be at its terminal stages as people are released from hospital. This has to be a story of great hope and inspiration and don't be surprised to see it captured in a movie.

This rescue is a tribute to human courage, international cooperation and intelligent planning.

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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