The courts recently entered a conviction against the Ministry of Social Development relating to the tragic shootings at the WINZ office in Ashburton. The Ministry was found to have failed to take all practicable steps to ensure the safety of its employees under the Health and Safety in Employment Act 1992.
Many people I have spoken to see the prosecution as “PC madness” brought about by the new health and safety laws. How can WINZ be held responsible for the violent acts of an aggrieved gunman? Even the Ministry itself didn’t agree with a particular aspect of the ruling and challenged the court’s interpretation of what a safe office layout should be.
Protecting employees from - what the Court expects
What the ruling does do is provide an insight into the expectations the courts have for employers when it comes to protecting their employees from harm.
The rationale for the prosecution was based on the premise that violence against staff at the Ashburton WINZ office was reasonably predictable, and a different office layout with physical restrictions to the staff working area was a reasonably practicable step in response to that hazard.
Was the event predictable?
You have to go into the background of what WINZ deal with on daily basis to assess what all that means. From 2008 WINZ Ashburton had experienced 31 security incidents, including 9 threats to kill. Nationally WINZ had numerous examples since 2009 where WINZ clients had brought weapons into WINZ offices such as a hammer, a spanner, a stick, a broom handle, a bottle, and knives.
Whilst the Judge found that a lone gunman was not reasonably predictable, client violence against WINZ employees was predictable.
So if you accept staff are at risk of violence from the people they deal with, the next action is to take reasonably practicable steps to ensure your staff are not hurt by those people.
This is where you get into the practical stuff of how WINZ strikes a balance between having a workspace that allows WINZ staff to work face-to-face with people who need assistance, and protecting WINZ staff from the very small percentage of people who may become violent.
Physical aspects crucial
The crux of the court’s ruling was that WINZ could have done better with the layout of the office. WINZ could have had a physical barrier to delay a person attempting to assault staff, and WINZ staff needed a route to escape to safety in the event of a threat.
It was not necessary to prove that the change to office layout would have stopped the gunman, and the Judge wasn’t persuaded that these changes would have prevented the shooting. But it was found that that if you are dealing with people who may become violent, then it is reasonable to design the reception area and office in a way that could slow down the movement of a violent person, and also give staff a secure place to move to if someone does barge through reception.
It’s worth noting this prosecution was made under the old Health and Safety in Employment Act 1992 and not the new workplace health and safety legislation. The Ministry of Social Development as a Government department cannot be fined. But if they could be fined, the Judge stated she would set the fine at $16,000 for a breach which carries a maximum fine of $250,000.
