The Ports of Auckland (POAL) has often been in the news for the number of accidents that have occurred at the Port.
Late last year POAL was fined more than half a million dollars after pleading guilty to two charges over the death of a stevedore who was killed by a falling container in August 2020.
A further stevedore at POAL, aged 26, died in April 2022 after being crushed by a container. That accident, and a further one at Lyttleton Port, were separately investigated by the Transport Accident Investigation Commission (TAIC) which released its findings in a joint report in October last year.
The Chief Investigator of Accidents, Naveen Kozhuppakalam, said the report identified broad safety issues for the whole stevedoring sector. He said that neither company monitored how well its employees were using rules and guidelines to manage workplace risks. "People become desensitised to risk, they take shortcuts or drift away from following rules, some of which are thought to be impracticable. Administrative risk controls only work with ongoing active safety leadership, good supervision, and a culture of safe working behaviour."
In the past decade, New Zealand has had 18 deaths and 397 reported injuries in its ports. TAIC Chief Commissioner Jane Meares said stevedoring has the second highest rate of fatalities of any industry in New Zealand.
A recent decision of the Employment Relations Authority, and on appeal to the Employment Court, has reinstated a dismissed stevedore, Ethan O’Brien, at POAL on an interim basis.
During his 13 months of employment Mr O’Brien had been caught out on a number of health and safety incidents. He was issued with a health and safety breach notice for driving a motorcycle on the port without a helmet or licence. A further two incidents occurred where Mr O’Brien made errors which resulted in damage being caused to client vehicles. Mr O’Brien also attempted to enter the POAL site without his access identification card. Although denied entry by security staff, he again attempted to surreptitiously enter the site but was again stopped by security.
Due to the high-risk work environment there is a Drugs and Alcohol Policy which provides for random drug testing for drugs and alcohol. In July last year Mr O’Brien was selected for random testing. When Mr O’Brien gave his urine sample the technician stood behind and to the side of him. His evidence was that he was not able to see Mr O’Brien’s genitals or urine stream as the sample was being provided. The technician could only see that he took the cup and that his arms were held in front of him in the region of his genital area while the sample was being provided.
The technician’s evidence was that the test cup was just over half full, and the cup did not feel as warm as it should have when Mr O’Brien handed it to him. The technician advised Mr O’Brien that the thermal strip had not been activated, which indicated that the sample was outside the required temperature range, so he was unable to continue with the sample and would be invalidating the test. The technician did not inform Mr O’Brien that his sample had also failed to meet the minimum level of creatinine required for a valid sample.
Mr O’Brien’s evidence was that he asked the technician, and then his manager, whether he could undertake another test. The technician did not recall that request being made and his manager strongly refuted that any request was made. Mr O’Brien was then sent home and suspended from work. Following a disciplinary process Mr O’Brien was dismissed.
Mr O’Brien applied for interim reinstatement (an order providing reinstatement of employment until a full hearing of the case can be heard).
On appeal, Judge King said that there is a strongly arguable case that Mr O’Brien was unjustifiably dismissed. However, when considering the overall justice of the case, the Judge said that she was satisfied that full interim reinstatement should not be ordered. She ordered that Mr O’Brien was to remain on the payroll until the full hearing of Mr O’Brien’s substantive claim in the Employment Relations Authority. She said that the expert evidence that there is a risk of serious injury or death if Mr O’Brien is reinstated to the workplace could not be taken lightly by the Court.
While the clear indications from the Authority and the Court are that Mr O’Brien will be successful in his claim that he was unjustifiably dismissed, he may be less successful in his application for final reinstatement.
Without detracting from the serious safety issues in the stevedoring industry, the stand taken by Mr O’Brien’s employer indicates that employees, or at least some of them, have their part to play in making the workplace safe for themselves and others. Read more....