October 2016 – Case Review
Some recent health and safety prosecutions offer us opportunities to learn from others’ mistakes.
Although these prosecutions took place under the old Act they are still relevant.
In 2014 a logging truck driver died on his first day at work.
We’ve taken the following from the WorkSafe website at:
A Gisborne-based logging transport operator was fined $80,000 and ordered to pay reparations of $100,000 in relation to the death of a contractor who was fatally run over during his first day on the job.
On 13 February 2014, Mr Hickey was driving a truck and trailer unit, transporting logs from Puketoro Station to Eastland Port. While the truck was still moving, Mr Hickey exited the cab and became caught under the rear wheel of the truck, suffering severe injuries, which proved fatal.
Mr Hickey was contracted as a driver for logging transport company Hawke Equipment Limited (Hawke). At the time of the incident, Mr Thompson ran Hawke’s Gisborne log operations.
A WorkSafe New Zealand investigation found that Mr Thompson had failed to undertake proper checks /tests and ensure that Mr Hickey was inducted, which included undertaking an in-cab assessment of his driving skills, ensuring he was familiar with the vehicle, and orientation into the forestry site. Mr Thompson accepted that these failures contributed to Mr Hickey’s death.
WorkSafe Chief Inspector Keith Stewart says this case clearly shows why adequate training and induction processes are vital in helping keep workers safe.
“This was a tragic example of what can happen when training is not provided.”
“As an agent of Hawke, Mr Thompson failed to ensure that the victim was trained to do his job safely. Employees and contractors should be fully equipped to manage any work-related risk so they can go home to their families at the end of each working day, let alone on the first day of work,” Mr Stewart said.
As well as the above, the investigation also found that the truck and trailer both had multiple pre-existing crash faults and that the general maintenance of the rig was below a reasonable standard.
Although under the new Act we would be referring to PCBU and Worker the principle of a safe workplace is the same.
The WorkSafe summary raises the following safety lessons:
- Ensure pre-employment confirmation of H&S credentials and training
- Ensure employee undergoes pre-employment H&S induction and training
- Ensure that the truck and trailer is subject to a regular audited maintenance schedule; and
- Ensuring that a truck and trailer meets a reasonable standard of maintenance.
In a second case a company director was given home detention and his company was fined $56,000 and ordered to pay $121,320 reparation after one of his workers died when the face of a trench collapsed and buried the worker.
The worker was working in a four-metre-deep trench. The trench did not have any shoring to prevent the trench walls collapsing and nor were the trench walls battered (sloped) to prevent collapse.
The face of the trench collapsed burying the worker in an estimated eight tonnes of soil.
The following quotes from WorkSafe Chief Inspector sum things up.
“Anyone digging a four-metre-deep trench should be aware of the possibility of collapse and should take proper precautions against collapse- such as shoring or battering work.”
“He was needlessly in harm’s way while at work. We know how to dig trenches safely – it’s not hard to take the necessary safety precautions.”
The third case is not strictly a Health & Safety case but it does have implications for the Health & Safety field.
A worker was dismissed after returning a positive drug test. He filed a personal grievance for disadvantage (he was stood down without pay) and unjustified dismissal (he was eventually sacked).
Part of his argument was that the employer had a drug and alcohol policy, and a drug and alcohol rehabilitation policy that it had failed to follow.
This argument was found to be valid, and following precedent set in earlier cases the company’s failure to follow its own drug and alcohol policy strictly meant the subsequent decision to dismiss was unjustified.
The implication for Health & Safety is that if your policy holds you to a higher standard than the minimum required by law, then that is what you can be judged on. If you have a policy that says that you will work to a higher standard then you must work actively to maintain that higher level and not just treat it as ‘feel good’ brownie points for having good intentions that wilt under pressure.
Gary McLeod v Envirowaste Services Ltd [2016] NZERA Christchurch; P van Keulen
