Edmonds Judd

Health and Safety at Work Act 2015

Health and safety: Successful prosecution of former chief executive

Commercial, Employment, Your Own Business
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Lessons to be learned

Stevedore, Pala’amo Kalati, was struck and killed by a falling container at the Auckland port on 30 August 2020.

Mr Kalati’s death led to Maritime New Zealand’s successful prosecution under the Health and Safety at Work Act 2015 (HSWA) of both Port of Auckland Ltd (POAL), the company that runs Auckland’s port, and its former chief executive.[1]

This is the first time that the chief executive of a New Zealand company has been prosecuted over a workplace death.

 

The accident

The circumstances leading to Mr Kalati’s death were complex. However, the principal cause of his death was that he had been instructed to work on the deck of a ship contrary to the port company’s policy of remaining more than three container lengths away from an operating crane. Consequently, Mr Kalati was in the path of a falling container when the mechanical locking mechanism securing it to the crane failed while it was being lifted.

 

Prosecutions

Maritime New Zealand brought prosecutions against both POAL and its chief executive under section 48 of the HSWA. This section makes it an offence to fail to comply with a duty under the legislation that exposes a person to a risk of serious injury or death.

POAL pleaded guilty; it was fined $561,000 in 2023. The port’s chief executive defended the charges.

 

Due diligence requirement

Section 44 of the HSWA imposes a duty on the officers of a company, which includes directors and senior managers such as a chief executive, to exercise due diligence to ensure that their company complies with its legal duties under the legislation.  This is defined as exercising the skill and care that a reasonable person would use, taking account of their position, their responsibilities and the nature of the company’s business.

 

This section of the HSWA specifically states that to exercise due diligence, an officer must:

  • Keep up to date on health and safety issues
  • Understand their business and its health and safety risks
  • Ensure their business has, and uses, appropriate measures to eliminate or minimise health and safety risks
  • Ensure their business has processes for assessing new information about health and safety risks, such as incident reports, and acting on it promptly, and
  • Confirm that the measures and processes referred to above are being used and are working.

 

The court had to consider the duty imposed by section 44 on an officer in a large organisation when they were not involved in the day-to-day operations of that organisation. The chief executive’s lawyers argued that the chief executive could not be expected to know about everything that was going on at the port. The court accepted this but it found that the chief executive had a personal duty to ensure that the port company had measures in place to counter health and safety risks, and that they were implemented. He also had a duty to verify from time-to-time that these measures were effective.

 

The former chief executive was found guilty of two of the three charges brought against him. He is yet to be sentenced.

 

Lessons for company officers

This is the first case in New Zealand in which a senior officer of a company has been convicted following a workplace death. The outcome of any similar future prosecution will depend heavily on the facts of the individual case. For example, the extent of the duty in section 44 depends on the exact role the officer has in the company and the type of business it operates. The court’s decision, however, makes it clear that officers need to ensure that:

 

  • Their company has systems to ensure accurate information about health and safety matters flows to them from those carrying out the company’s work
  • They know how the company’s staff actually carry out their work as opposed to how they are supposed to do it (work as done v work as planned), and
  • New health and safety measures are implemented promptly once they know they are needed.

 

If you have any concerns about whether your company is fulfilling its duties under the HSWA, or the extent of your personal duties as an officer of a company or other organisation, please do not hesitate to contact us.

[1] Maritime New Zealand v Gibson [2024] NZDC 27975.

 

 

 

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Employee burnout

First Job, Health Issues, Your Own Business
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Acknowledge and address this

The effects of burnout and work-related stress are an issue that both employers and employees should acknowledge and address.

 

Under the Health and Safety at Work Act 2015, organisations have a clear obligation to prevent harm not only to their employees’ physical health, but also their mental health.

 

 

What is burnout?

‘Burnout’ is the result of chronic workplace stress that is not successfully managed. The World Health Organization has stated burnout is an occupational phenomenon and it is not classified as a medical condition. Although burnout is not depression, it is recognised as a major risk factor for depression and anxiety.

 

Burnout affects people differently and the symptoms of burnout are varied. Some common symptoms include:

  • Exhaustion: Feeling drained and emotionally exhausted
  • Low productivity: Negativity about work or being unable to concentrate. This can affect the ability to carry out normal, everyday tasks at work
  • Increased mental distance from one’s job: Becoming cynical about work and distancing from one’s colleagues, and
  • Physical issues such as insomnia, headaches or stomach aches.

 

 

Employers’ obligations

You must be aware of your obligations to manage health and safety risks, including supporting any of your employees who are struggling mentally, and take steps to address the issues.

 

Prevention, as they say, is always better than cure, and in terms of preventing burnout you have a great deal of influence in setting the culture of your workplace. Burnout is often the result of an unhealthy workplace culture. Workplaces that have unmanageable workloads, unreasonable deadlines and lack of support can all contribute towards burnout. You should therefore proactively consider the following:

  • Are your employees given achievable goals?
  • Are there established processes to enable your employees to raise any issues and concerns they might have?
  • Is training provided to both your managers and employees on how to deal with mental health issues?

 

If a staff member discloses that they are struggling with burnout, you should take proactive steps to understand what is causing the issue and what is required to address it. It may be necessary to get advice from a medical professional (it is important to maintain confidentiality in line with your employee’s wishes and any privacy requirements).

 

In addressing your employee’s burnout, you should look for a solution that works for you both. It is prudent that all decisions and any agreements between you both are recorded in writing as evidence of the steps that have been taken.

 

Aside from the legal considerations of your health and safety duties, from a business perspective there is strong evidence that investing in the health and wellbeing of your staff provides a substantial return on investment. This is not surprising, given that burnout reduces productivity and is associated with high staff turnover. Taking steps to avoid employee burnout is good for business.

 

 

Feel burnt-out as an employee?

It is important you talk to someone at work as soon as possible. Although it may be difficult to talk about stress and burnout, it is vital that your workplace becomes aware of it and is given an opportunity to stop the situation from getting worse. By asking for help and support, it enables your employer to make necessary adjustments. This may include rebalancing the demands and responsibilities of your role, cutting back on unnecessary tasks or establishing a set of objectives to work towards.

 

 

A recent court case

Burnout was the issue in an Employment Relations Authority (ERA) case[1] in which an employee successfully argued that he was constructively dismissed because his employer had failed to provide him with a safe working environment.

 

The employee had raised concerns about his work-life balance and even informed his manager that he was ‘burnt out’ and could not continue due to being ‘broken by the workload.’ When his employer did not take prompt action to address these issues, the employee resigned.

 

The ERA held that it was reasonably foreseeable that the employee would resign unless his burnout concerns were addressed, and ruled that his employer should have taken more formal and proactive steps to understand their employee’s mental health situation. As a result, significant financial remedies were awarded to the employee, including $25,000 as compensation for hurt and humiliation.

 

 

Employers take note

Employers have a duty to protect their employees in health and safety issues, and this includes their mental health. A person’s work environment can have a significant impact on their mental wellbeing and, as a result, employers must take prompt, meaningful action should staff burnout arise.

 

If someone on your staff is struggling with burnout, it is important that they communicate this to you or their manager. For some guidance on steps to help avoid employee burnout, please contact us. We are here to help.

 

[1] Perry v The Warehouse Group Limited [2023] NZERA 773.

 

 

 

DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Fineprint may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650