Relocation of StatsNZ highlights concerns about employee safety and employer liability – employment lawyer Rosemary Wooders provides tips for HR
Plenty of workplaces are full of great people but not every workplace is in a great location. Organisations that operate in sketchier parts of town run the risk of attrition if workers choose to jump ship for more salubrious locations.
The problem was highlighted this year when a government department chose to relocate to the bottom end of Queen Street, in Auckland.
Concerns were raised earlier in the year about safety in that location, and the agency said it was "confident" that it was a safe and comfortable workplace.
So, what is an employer’s responsibility when it comes to employee safety in this situation? HRD Australia spoke with Rosemary Wooders, Bell Gully employment partner, who said employers might be surprised to learn they may be liable.
Although an employer might not be obliged to provide a security guard or install CCTV at operations where workers feel unsafe at night, she said, it is regarded by workers as reasonable measure of respect.
On the flip side, a trip away from the work premises to see a customer or client is covered by the Health and Safety at Work Act, with the employer potentially liable for injury if anything goes wrong.
“If you are potentially in an area that has known hazards around it, as an employer, you will need to be thinking about ‘What reasonably practicable steps can I potentially implement to ensure my workers’ safety while they are out and about?’” she said.
Although a commute is always the worker’s responsibility, Wooders said, some employers will pay for taxis to ferry staff home who finish late at night.
“In certain industries, it is good practice to have in place to ensure that if you are requiring your employees to work later at night, that they do have a safe mode of transport to get home,” she said. “It’s just that additional layer of safety for employees.”
Usually, the commute is the worker’s responsibility.
“The Health and Safety at Work Act states that an ordinary commute would not amount to work, and so therefore the provisions of the act would not kick in,” Wooders said.
But errands during work hours, including lunchtime strolls, are on workers’ own time and if any trouble is encountered, it would not be caught by the legislation, she said.
Many facets of a job can bring alarming safety concerns. Wooders provided an example of an agriculture worker killed while driving a tractor home from work. The driver had worked almost 17 hours that day and clocked 197 over the previous fortnight.
“Fatigue was a likely cause of that accident,” she said. “Being aware of measures to best protect against that is important.”
Worksafe NZ took the case to court and a judge found against the employer.
Some people, however, are not working if they are not traveling. Delivery drivers or travelling salespeople are prime examples.
“The employer would have health and safety obligations and need to ensure the individual has a safe mode of travel to get to the customer,” she said. “If there is any incident along the way, there could be various obligations under the Health and Safety at Work Act.”
While StatsNZ chose to relocate, apparently because of employee safety concerns, employer responsibility extends only so far.
Wooders cites a case that looked at the scope of the Accident Compensation Act in 2016 where a worker was robbed on his way home from work and suffered serious injuries.
The individual had finished his night shift and was wearing his work uniform, which he argued made his commute a work-related activity.
“The question arose, is this a work-related personal injury?” Wooders said — and the answer was no.
“If something unfortunate happens on the way home, whilst commuting, more likely than not, it is going to fall on the employee.”
