WorkSafe has charged the Ministry of Social Development for failing to ensure the safety of its employees following an attack by a member of the public at a Work and Income office that left two employees dead and a third badly injured.
The charge has been laid under s 6 of the Health and Safety in Employment Act, which requires employers to take “all practicable steps to ensure the safety of employees while at work”.
The charge shows a willingness by WorkSafe to prosecute employers for failing to protect workers from the deliberate and unlawful acts of third parties. That is a far cry from the typical case in which an employer is prosecuted for failing to have adequate protections in place to prevent an accidental injury and has implications to all employers with public-facing employees.
Such a duty, if upheld, is not unprecedented. The Act defines a hazard as including “a situation where a person’s behaviour may be an actual or potential cause or source of harm to the person or another person”. That definition is not limited to behaviour by employees, and employment law cases have recognised that risks posed by deliberate wrongdoing by non-employees engage the Act. Inmates have been recognised as hazards to corrections employees (see Corrections Association of New Zealand Inc v Chief Executive of the Department of Corrections  1 ERNZ 185) such that the staff roster could (and in one case did) breach the Act. In another case, the Employment Court recognised that a dangerous psychiatric patient was a “hazard” in terms of the Act and declined to grant an injunction to stop strike action based on the employees’ honest and reasonable concern about their safety dealing with that patient (see Healthlink South Ltd v Flanagan  1 ERNZ 63). In a case with similarities to the present prosecution, but without the tragic consequences, a council’s inclusion of its employees’ full names on name tags was regarded as a potential hazard to those staff by making it easier for hostile members of the public to identify their home addresses (see Makeham v New Plymouth District Council  ERNZ 49).
The prosecution of the Ministry of Social Development is significant because it concerns the tragic consequences of such a risk materialising and demonstrates WorkSafe’s view that employers must, at least in some circumstances, act to protect employees from such incidents. Whether the prosecution is ultimately successful will depend on a variety of matters, including the measures that Work and Income implemented to protect its staff and what was known (or ought to have been known) about the risk posed to its staff by members of the public.
However, whatever the final outcome of the prosecution, the fact that it has been brought puts all employers on notice that they should evaluate the risk posed to staff by members of the public and investigate the practicability of steps that may be available to eliminate or minimise such risks.
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