Failures of Health and Safety consultants may lead to prosecution
Health and Safety / 17 April 2019
Recent concerns have been raised by WorkSafe NZ in relation to the quality of the health exposure monitoring, by some health and safety consultants. WorkSafe have issued a document to remind consultants of their duties under the Health and Safety at Work Act (Act) and the risk they face of being prosecuted, if they are found to fail these prescribed duties.
A recent District Court case found that a company failed to ensure, as was reasonably practicable, the health and safety of their workers, which resulted in a $70,000.00 fine. The consultants who were engaged to monitor the exposure to hazardous substances, did not have experience for this health and safety risk management. This competency issue meant that there were no exposure issues raised and this resulted in substantial failures of the company to manage the exposure of workers to hazardous substances.
Key points from the document
The expectation businesses have when they engage health and safety consultants, is that the work will be completed by a competent consultant. WorkSafe have been identifying competency issues with the monitoring reports of consultants, more frequently, which is why these concerns have been addressed. It is of paramount importance that competent advice on the management of health risk of workers, is provided. Consultants are required to ensure that their advice does not put any other person at risk (as far as reasonably practicable), based on the results from their monitoring.
Duties of consultants
Consultants are considered as workers under s 19(1) of the Act, as they have been engaged by a business, to carry out work. This means that s 45(1)(b) of the Act applies to consultants, where they have a duty while at work, to take reasonable care that their acts or omissions does not affect the health and safety of others. WorkSafe also notes that businesses tend to engage consultants as they have the technical expertise to assess the workplace risks. This then places a further moral and contractual duty on consultants to carry out competent work.
If it is found that there is a breach of this duty, it may result in a fine of up to three million dollars, or imprisonment. This will be dependent on whether it is found that the failure was reckless, and whether the ‘person’ is a natural or a business person. WorkSafe have the ability to consider taking enforcement action, if there is a belief that the consultant was working outside their competency and therefore potentially causing a risk to the workers.
Message for Employers
Given the concerns that consultants are not providing competent exposure monitoring assessments, we would advise businesses to ensure they are engaging verified professionals. As seen in the discussed case, it is important to engage with professional consultants who are competent in their work. This will minimise the potential risk of breaching your health and safety obligations as an employer.
Choosing a health and safety professional can be tricky, because accreditation and assurance processes around this are still being developed. Due diligence is recommended, to ensure you get the right advice, and some things to consider include:
- Is the person/organisation a member of a relevant professional association?
- Can they demonstrate their health and safety training and knowledge?
- Do they have practical experience in your industry or type of business activity?
- Can they provide testimonials, or references?
Furthermore, if your business includes consultants, we recommend to advise and remind the workers of their obligations and duties in their role, in order to avoid the risk of prosecution.
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.