Guilty: Significant outcome in NZ Health & Safety Prosecution

A November New Zealand ruling offers key insights for business officers and organisational leaders who hold significant influence over their enterprise’s management. Officers must maintain adequate knowledge to ensure their PCBU’s (person conducting a business or undertaking) compliance with HSW Act obligations.

This ruling confirms due diligence obligations apply to all officers in PCBUs, regardless of size. Leading a large organisation doesn’t reduce these responsibilities. This officer faces a potential NZ$300,000 penalty. The District Court found Tony Gibson, former chief executive of Ports of Auckland Limited (POAL), guilty under section 48 of the Health and Safety at Work Act 2015 (HSW Act).

The Court determined that:

  • Mr Gibson was an officer of a PCBU (POAL);
  • Who failed to exercise due diligence in ensuring POAL fulfilled its duty of care; and
  • That failure exposed workers to death or serious injury risks.

This marks the first guilty verdict for an officer of a major New Zealand corporation under the HSW Act.

Background
In August 2021, POAL and Mr Gibson faced charges regarding port worker Mr Pala’amo Kalati’s death on 30 August 2020, who was crushed during a lifting operation. POAL pleaded guilty, acknowledging its failure to ensure worker safety.

Judgment: Summary

  • Mr Gibson failed to demonstrate reasonable care as POAL’s ultimate safety authority and hands-on CEO.
  • Mr Gibson failed to properly implement recommended changes to the POAL executive team’s health and safety accountability structure.
  • He did not ensure POAL’s Health and Safety Steering Committee effectively fulfilled its role in managing occupational safety.

Evidence showed Mr Gibson knew, or should have known, about deficiencies in POAL’s critical risk assessments through monthly safety reports. Given his experience, Mr Gibson should have identified the gaps in POAL’s management of operations that led to Mr Kalati’s death. He was responsible for ensuring POAL addressed these operational issues.

The Judge found these factors significantly increased the likelihood of POAL breaching its duty of care. Mr Gibson’s lack of due diligence exposed stevedores to potentially fatal harm from falling objects, violating section 48.

The Judge noted that POAL’s breach didn’t automatically prove Mr Gibson’s failure – a PCBU can breach its duties despite proper efforts by its officer to do all that he or she could reasonably have been expected to do in the circumstances, having regard to what the officer knew, what they ought to have known, and their ability to make or influence decisions in relation to the relevant matter.

Broader considerations
This ruling’s implications warrant careful examination within organisations. Officers must actively demonstrate engagement with due diligence obligations beyond basic oversight, including systematic reviews and proactive verification of information.

Actionable Steps
Active engagement with due diligence obligations is now crucial. This includes systematic reviews and proactive verification of safety information. Are your workplace safety practices up to scratch? It’s time to review and strengthen your approach.

Is your alcohol and drug testing policy up to date? Does it reference current legislation? For assistance in implementing drug and alcohol testing in your workplace reach out to our team here.

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