Employee’s carelessness doesn’t exonerate employer

Employers are being reminded that when it comes to a health and safety prosecutions resulting from a worker’s carelessness it does not reduce the onus on them.

A recent court case between Eziform Roofing Products Ltd and the Labour Department has highlighted the message.

Eziform was ordered by the District Court to pay reparation of $40,000 and fined $18,000 for failing to ensure the safety of an employee under the Health and Safety in Employment Act. It was then appealed by the department on the basis it was too low.

The accident happened when two employees were trying to install guttering on a two-storey home. One of the men tried to stamp the guttering into place while standing on the edge of the roof and holding onto the other man’s shoulders. He lost his footing and fell five and a half metres onto concrete below. He suffered multiple fractures and permanent damage.

The District Court took into account the employee’s “foolish” actions when deciding on what penalty to put in place and imposed a reduced fine. However, the High Court viewed that allowing an employee’s carelessness to minimise culpability would undercut one of the policy objectives of the Act and raised the fine to $60,000.

Law firm Chapman Tripp said in a statement that the case had provided clarity around the issue of whether an employee’s contribution to their accident is relevant in the sentencing of the employer.

“In short an employee’s contribution will not be relevant where there are clear steps that an employer should have taken to prevent serious harm,” it said.

The law firm added that the ruling showed a “key difference” between health and safety sentencing and employment law as with employment law the contributory actions of an employee will normally be taken into account when the court is deciding on what penalty to impose on an employer.

Chapman Tripp Senior Associate Marie Wisker said the case needed to be highlighted as some employers may not think they could be liable for an accident that resulted from an employee’s silly actions.

“It’s something you might not automatically think of; [employers may say] ‘it’s their fault, they shouldn’t have done it’ but it’s not quite as simple as that,” she said.

“An employer has obligations to make sure that they take all reasonable practicable steps to ensure the safety of their workers, and that includes thinking about foolish actions that their employees might take and taking appropriate action to try and reduce the risk of that happening.”

Wisker added that while employees themselves have specific obligations under the Health and Safety Act to ensure their actions don’t harm them or others it is rare to see an employee prosecuted for something foolish he or she might have done.
 

Key HR takeaway points to ensure your staff are aware of Health and Safety policies:

• Make sure your employees receive a copy of your health and safety policy with their contract and have them sign a document acknowledging they have read and understood it
• Keep copies of the document in communal spaces such as the lunchroom or office noticeboard so employees have easy access to it
• Have posters identifying hazards and warning workers of danger as well as posters encouraging worker’s to stretch and take breaks in appropriate places
• Give employees the opportunity to help develop health and safety systems. They are often more aware of potential problems and hazards which means their feedback is essential in developing a safety culture