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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Alert24 - Safeguard Update

Work placement lessons

Work placement lessons
Article Type:
Cases
Publication Date:
2016-11-11
Jurisdiction:
New Zealand

Any organisation which is arranging somebody under its care to be placed in a workplace to carry out work needs to ask questions about the nature of the work and its risks, and to have systems in place to react appropriately when the answers are unsatisfactory.

This is a key lesson from the conviction of the Department of Corrections, which pleaded guilty to a charge laid under s15 of the HSE Act but raised doubts in court that the outcome would have been any different had it taken all the practicable steps specified by the regulator; and also argued that the failings of another party diluted its own responsibilities (Nelson DC, 22 September 2016).

Both arguments were rejected by Judge Jan-Marie Doogue, chief judge of the District Court.

The charge was laid after a man, ‘C’, doing community service was killed in June 2014 while on a placement with the Anglican Church in Wakefield, near Nelson. He and another man also doing community service, ‘P’, were using a chainsaw to cut up a large tree that had been felled weeks earlier by P and the vicar and had been left in an unsafe position on sloping ground above the church. P used the chainsaw to cut the tree into rings while C rolled them down the slope. At some point the remaining part of the tree became unstable and rolled down the slope, striking C and pinning him under a weight of 400kg. He died from his injuries. The vicar at the church, who usually supervised any community service work on site, was unwell on that day and was not supervising at the time of the incident.

WorkSafe charged Corrections under s15 – that it failed to take all practicable steps to ensure no action or inaction of its employees (probation officers) harmed any other person – and set out 17 practicable steps Corrections could have taken. Corrections acknowledged it could have taken 14 of the steps but disputed three of them:

  • To ensure all “agency sponsors” (the vicar in this case) understand what is required of them while supervising offenders;
  • To ensure the agency sponsor and the offender understand their H&S obligations, including supervision; and
  • To ensure the scope of work, including any exclusion re hazardous work, is communicated to the agency sponsor and the offender prior to placement.

Judge Doogue found that despite this, the 17 charges had to be considered in the round, as taken overall they amounted to a systemic failure to train, assess risk, detect changes in circumstances (such as supervisor illness), assess an agency sponsor’s H&S systems, and set expectations.

Regarding the ability of probation officers to influence health and safety outcomes, the judge found the connection to be clear. “While probation officers’ actions or inactions may not be the direct cause of any harm, the control that [they] have over an offender’s community work placement means that their failings in health and safety management may harm the offender.”

Corrections’ records showed the type of work available at the church was clearing of noxious plants from fields and cemetery, cleaning of watercourses, and cleaning and vacuuming indoors. Felling trees or using power tools were not listed, leading it to suggest the vicar’s failure to notify it of the true nature of the work being done – as well as his failure to supervise – meant its staff were removed from the harm caused.

Judge Doogue rejected this, finding the probation officers’ actions or inactions to be “an essential precondition” to the harm, and noting that P’s files included a comment from 2011 that he was enjoying doing arborist work at the church, including cutting down trees – a clear signal of out-of-scope hazardous work being undertaken that was not followed up.

Similarly, a review following the incident found an offender placed at a school was using a chainsaw, despite such work not being listed on the types of work available at the school.

On the matter of the vicar’s own responsibility, Judge Doogue acknowledged his actions were “seriously flawed” but found they were due to Corrections’ failure to properly train its probation officers on H&S matters, including how to communicate H&S expectations to agency sponsors supervising offenders on placement.

The judge also found the standard forms used in dealing with placement agencies did not give any context for the questions they posed. “Any such questions on scope of work needed to be given context. Agency sponsors needed to be given clear direction on why the questions were being asked in order to yield relevant and informative answers.”

Systems were not in place to flag and follow up variations or unusual responses, such as the vicar writing “with binoculars?” in a 2012 form to a question about supervision, which ought to have indicated he was practising a form of supervision not necessarily involving line-of-sight; or his writing “of course” in response to a question about H&S risk.

Judge Doogue rejected the suggestion that even if Corrections had applied all 17 practicable steps, the vicar’s conduct on the day would have been the same. Had staff been properly trained, and systems been in place, “deficits in [the vicar’s] approach would have been detected, and C and P would not have undertaken hazardous work. Indeed, [they] may not have been placed at the church at all.”

“In not addressing [the vicar’s] approach to health and safety, the failure by Corrections to take all practicable steps increased the likelihood of harm to C”.

 

 

People Mentioned:
Jan-Marie Doogue
Organisations Mentioned:
Department of Corrections
Reference No:
161111CA-2227

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