If you mess up, 'fess up
The decision concerned Toll Transport Pty Ltd, an Australian based company who provide logistics and freight transportation services. Toll was charged under the Victorian Occupational Health and Safety Act 2004 with failing to provide and maintain a safe working environment, so far as was reasonably practicable, following an incident that resulted in the death of one of its employees.
The incident occurred while the company was in the process of loading freight onto one of its ships – a process which involved a tractor pushing a trailer up a ramp connected to ship. At the time of the accident, the victim was placing rubber mats at the top of the ramp. An employee driving a tractor failed to see him and ran him over causing fatal injuries.
Safe Work Australia’s investigation into the incident revealed that while Toll Transport Pty Ltd had a system in place to manage the risks associated with loading its ships, some of its procedures were inadequate and were not strictly enforced - including placing an employee on the deck to direct the tractors on the ramp.
Following an early guilty plea, Toll Transport Pty Ltd was convicted. In its sentencing decision, the Court explained that it regarded the offending as most serious and deserving of strong punishment and denunciation.
Interestingly, the Court also highlighted the importance of an early guilty plea. It said that had the company not entered an early guilty plea, it would have fined the company the maximum fine of $1,299,240.
While the Victorian legislation differs in some respects from the New Zealand Health and Safety at Work Act 2015, the general duties imposed under both Acts to maintain a safe working environment are almost identical. Given the fact that the maximum penalties are even greater in New Zealand (the maximum offence for company failing to comply with a duty that exposes individuals to risk of death or serious injury is $1.5 million), it is entirely possible that we will see the Courts here follow Victoria’s lead in issuing substantial fines as they begin to release their first decisions under the Health and Safety at Work Act 2015.
Health and safety dismissal - serious misconduct but dismissal still unjustified
In another recent decision, the Employment Relations Authority has highlighted the importance of following a fair and proper process when dismissing an employee – even where that employee has committed a serious health and safety breach.
The facts of the case concerned a construction worker who had been asked to locate and expose various service ducts at the base of an electricity transformer. A decision was made to cut into a service duct with a handsaw, despite the fact that it was surrounded by water and located next to an electricity transformer. As a result, another worker using the handsaw received an electric shock.
The worker and three other employees were each required to complete incident forms setting out their explanation of the incident. The employer then wrote to the worker inviting him to a disciplinary meeting during which the decision was made to dismiss him for serious misconduct.
Interestingly, the Authority agreed with the employer that the employees conduct was both causative and blameworthy and that it was justified in its finding of serious misconduct. It referred specifically to the fact that the employee failed to make himself aware of the potential hazards of the worksite and to take reasonable steps to stop the cutting of the service duct.
Nevertheless, the Authority found that the process the employer followed leading to the dismissal was defective, as it had failed to provide him with all relevant information (such as the incident forms completed by other employees) which meant that he was not afforded the opportunity to properly respond to the incident. The Authority also found that there was further unfairness created by the employer’s treatment of other employees involved in the incident who were only given written warnings in respect of their conduct.
This case highlights the fact that while health and safety-related misconduct is particularly serious in this day and age, it doesn’t obviate the importance of following a fair and proper process when disciplining an employee.
This article was authored by Mallory Ward, Solicitor, in our Employment team in the Wellington office.