Tuesday 6 December 2016

Ministry of Social Development Prosecution

Chief District Court Judge Jan Marie Doogue has entered a conviction against the Ministry of Social Development on a charge of failing to take all practicable steps to ensure the safety of its employees. Judge Doogue declined an MSD application for discharge without conviction.

The charge was brought by WorkSafe which investigated MSD’s safety systems following the shootings at the WINZ office in Ashburton.

In her judgment she said that ‘deterrence, denunciation and accountability’ are the most important principles to consider in health and safety cases. She noted that had she been able to fine MSD (see ** below), she would have set the fine at $16,000

Judge Doogue noted that “the defendant’s systems were weaker than those of other service-oriented government agencies with a similar client base, but were not a major departure from industry standards.”

“This prosecution has clarified for all workers and employers that there are steps that need to be taken to protect staff dealing with the public,” WorkSafe’s Chief Inspector Investigations Keith Stewart said.

“Employers need to assess the level of risk their staff face and what steps would be appropriate for them and their workplace to manage that risk. In some cases using methods to restrict physical access to staff may be a prudent decision after analysing the risk, but this is not a blanket requirement that WorkSafe would expect.

“We expect that companies and government agencies who deal directly with the public assess the risks of violence or threats of violence, identify controls, implement them and monitor their effectiveness, and if necessary revise to improve the controls. They should seek appropriate professional advice, if needed, to ensure this is a robust process,” Mr Stewart said

“If we see evidence of this process in place, we will accept that the business or agency is showing intent to comply with the requirement to keep workers and others safe at work.

“WorkSafe has a fact sheet for all employers on best practice in developing their plans. For public sector employers, specific and aligned advice is available already as part of the government wide Protective Security Requirements.

“WorkSafe is also working with government agencies to help them respond in a way that will protect their staff without undermining their ability to work constructively with New Zealanders who need to access public services in positive and welcoming service centres.

“Following the incident in 2014, MSD has made significant positive changes to its systems.

“WorkSafe urges employers to actively involve staff in the analysis process and the development of appropriate policies and procedures for their businesses,” Mr Stewart said

[Ends]

• We understand the judgment has not been made available on the Ministry of Justice website. It is attached for your information
• MSD pleaded guilty to one charge under Section 6 of the Health and Safety in Employment Act 1992 that it failed to take all practicable steps to ensure the safety of employees which carries a maximum fine of $250,000 (note point 1 below).
• WorkSafe alleged six ‘practicable steps’ MSD should have taken to protect its workers

1. Ensuring there was no physically unrestricted access by clients to the staff working area (this was the subject of a disputed facts hearing before the Court with Chief Judge Ann-Marie Doogue ruling on 9 September that the step was proven)
2. Ensuring employees and contractors were adequately trained to respond to an emergency response incident
3. Adopted and effectively embedded a ‘zero tolerance policy’ well prior to the incident by publishing and embedding that policy and strategising to create a positive security culture and implement those strategies
4. Implementing a client risk profiling process
5. Implementing a client management plan tailored to the risk assessment of that client
6. Implementing effective incident investigation and incident data analysis including by:

a. Analysing the incident basis of security incidents annually
b. Setting key performance indicators on security incidents and reviewing monthly/quarterly
c. Engaging periodically with selected frontline staff from selected locations to evaluate the effectiveness of security systems
d. Instituting a comprehensive investigation process and analysis model applied to critical security-related incidents
e. Developing a security management plan or equivalent at the highest level of MSD
f. Completing a security audit to aid in the establishment of the security management plan

** As MSD is a Government Department, the Crown Organisations (Criminal Liability Act) 2002 applies and therefore MSD could not be fined

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