Failure to exercise due diligence results in prosecution for company director
General, Health and Safety / 24 March 2022
WorkSafe NZ prosecuted small business, Smoke Control NZ (SCNZ) and its director over the death of a staff member after they found the business and director breached their obligations under the Health and Safety at Work Act 2015 (HSWA)
The Court found that ‘a reasonable officer … would have ensured robust systems and procedures were in place to ensure worker health and safety’, finding ‘the steps required were neither onerous nor cost prohibitive’.
SCNZ is a supplier and installer of smoke/fire curtains for commercial buildings. On the morning 17 April 2019, the worker (the victim) arrived at work to retrofit side guides to smoke curtains he had earlier installed. The victim had previously fitted side guides and was familiar with the process and equipment needed for the job. The job required specific equipment, which was not in stock or available on the day. Due to urgency, the victim improvised and used a process not tried before using different equipment. The equipment was not fit for the task and too big for the machine. While using machine, the blade disintegrated at high speed fatally, striking the victim.
WorkSafe found Mr. Kennedy failed to ensure:
- Workers were trained and competent in safe systems of work
- Hazards are effectively identified and managed prior to starting a new task
- Ongoing monitoring and supervision of workers to ensure continued competency in and compliance with safe systems of work
WorkSafe found that as an officer, Mr. Kennedy failed to provide resources and processes to eliminate or mitigate health and safety risks. Even if these were provided, he had failed to verify the use of these resources and processes.
Mr. Kennedy was fined $31,500. SCNZ was ordered to pay emotional harm reparation of $100,000, consequential loss reparation of $115,937 and was fined $75,000.
Message for Employers
This case is an important reminder that a seemingly routine task can quickly turn fatal where the correct tools and processes are not in place.
If you are unsure of your obligations as a director or a PCBU under the HSWA, we encourage you to get in touch with us for training, advice and support.
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.