Health and Safety is often looked at as a compliance cost, a hindrance to business or “just the paperwork”. It’s harder to dismiss when a failure to take it seriously results in the death of a man with children and grandchildren, and over $700,000 in fines and payments from the business.
That was the case last year when Toll Networks (NZ) Limited appeared in the Auckland District Court to be sentenced for a 2016 accident which resulted in the death of a worker.
The case is a good indicator of the Courts using the higher fine threshold under the Health and Safety at Work Act 2015 to encourage basic compliance.
What was the breach?
Toll’s Onehunga depot is a busy workplace – with people, trains, forklifts and freight vehicles all entering and exiting to move freight in and out. The victim was standing beside a forklift which was unloading pallets. As the forklift moved the pallets tipped over and struck the worker who died as a result.
Toll’s failure was that it had not properly identified the risk of that happening or put appropriate controls in place. The only controls for pedestrian safety were administrative – rules and guidelines. There was no requirement for any form of barrier (permanent or temporary) or signage.
You will most probably have read opinion pieces in the newspaper or letters to the editor with people saying “you can’t account for employees who do dumb things”. Comments like that seem cold-hearted in the face of a tragedy like the above. The simple fact is that workers are human beings who do make mistakes, forget rules, and get tired or distracted. Without robust systems and controls those things can lead to an entirely preventable death or serious injury.
It will be a rare occasion where it will be reasonable not to take the small amount of time and expense required to separate humans from areas with large operating machinery like forklifts. In Toll’s case – that could have been as simple as a temporary tape barrier and a sign which would take 10 seconds to erect and dismantle again when the unloading was finished.
What was the outcome?
For companies, a breach of the relevant section of the Health and Safety at Work Act can end up with a fine of up to $1,500,000. Toll received a fine of $506,300 after consideration of all the mitigating factors. Toll also paid over $220,000 in reparations to the family of the worker who was killed.
To put that in context – the maximum fine under the previous Act was $500,000 – less than the total fine in this case.
What can you learn from this case?
Having a thorough and practical health and safety programme is business critical, both for the well being and productivity of your people, and your bottom line.
WRMK’s employment team provides robust health and safety advice, from setting up a health and safety programme, drafting polices and providing education sessions, to advice and representation if an accident or near-miss occurs.
If you have a question about a health and safety issue, or an employment matter in general, please contact our employment law team.
Our Thanks to Simon Davies-Colley for writing this article.