As the Ministry of Social Development awaits sentencing over the tragic WINZ shooting, two leading industry lawyers from DLA Piper have offered their advice on just how far employers really have to go if they want to avoid legal risk.
Here,
Laura Scampion and Melissa Johnston explain.
On 1 September2014 at 9.51am Russell Tully a disgruntled Work and Income New Zealand (WINZ) client wearing a balaclava and armed with a loaded shotgun, entered the Ashburton WINZ and shot at four employees, killing two of them. Mr Tully was found guilty of murder and sentenced to 27 years in prison.
In March 2015,
WorkSafe New Zealand laid a charge against the Ministry of Social Development under section 6 of the Health and Safety in Employment Act 1992.
WorkSafe alleged that the Ministry failed to ensure the safety of its employees while at work, in that it failed to take all practicable steps to ensure that they would not be exposed to the hazard of violent clients. Similar charges could be laid under the new Health and Safety at Work Act 2015 (HSWA).
The Ministry pleaded guilty to the charge but disputed the fact that it needed to ensure there was a physical barrier between employees and clients to delay the advance of a violent client.
Like many WINZ offices, the Ashburton office had a history of security incidents occurring with some frequency. Between June 2008 and August 2014, it had experienced 31 security incidents, including nine threats to kill, a statistic all too familiar to WINZ offices throughout New Zealand.
In the WINZ liability judgment, Chief Judge Doogue concluded that despite the fact that a lone mission-oriented gunman, such as Mr Tully, was not reasonably predictable, client initiated violence against WINZ employees was a reasonably predictable hazard.
Having concluded there was a reasonably predictable hazard, Chief Judge Doogue had to assess whether implementing a physical barrier to delay violent clients was a reasonably practicable step that the Ministry were required to take. To do this the Court had to weigh up the quantum of risk generated by the hazard against the practicability of addressing the hazard.
Chief Judge Doogue concluded that some form of physical barrier should have been provided for to delay a client attempting to manually assault an employee, or assault an employee with a weapon other than a firearm. She concluded, given the severity of potential harm, potential risk, and the Ministry's large operating budget the cost of implementing of barriers nationwide between $13.1 million and $27.3 million would not be disproportionate.
The Chief Judge noted that the fact that a physical barrier would not have prevented the harm of 1 September 2014 is not to be taken into account at this stage, but may be relevant during sentencing. The sentencing date for the Ministry is yet to be set.
In light of this WINZ judgment, how far does an employer have to go to keep employees safe? To what extent should cost be taken into account when weighing up the actions that need to take place?
Our take home points:
- If an employer has a duty under the HSWA, it must eliminate any risk to health and safety so far as reasonably practicable. If it is not reasonably practicable to eliminate the risk then the employer must minimise the risk so far as is reasonably practicable.
- The employer must comply with the above obligation to the extent which the employer has or would reasonably be expected to have, the ability to influence and control the matter to which the risks relate.
- Under the Health and Safety in Employment Act 1992, an employer is required to take all practicable steps and can take cost into account when considering if a step is practicable. However Judge Doogue in the WINZ judgment says "it has long been held that in order for cost to outweigh the risk of harm, the cost must be grossly disproportionate to the risk".
- Under the HWSA, an employer is now required to take reasonably practicable steps - a new test. It must weigh up and take into account all relevant matters including;
a.the likelihood of the hazard or the risk concerned occurring; and
b.the degree of harm that might result from the hazard or risk; and
c.what the person concerned knows, or ought reasonably to know, about
(i) the hazard or risk; and
(ii) ways of eliminating or minimising the risk; and
d.the availability and suitability of ways to eliminate or minimise the risk; and
e.after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
- The key change here being, under the new HSWA, cost can only be taken into account after the weighing up of all the above factors.
