Tony Gibson is the former Chief Executive of the Port of Auckland and is currently on trial in the first prosecution of its kind over the death of Pala'amo Kalati who was killed in 2020 when a container fell and crushed him while he was working at the Port of Auckland.

Mr Gibson has been charged over Mr Kalati's death under the beefed-up Health and Safety at Work Act (HSWA) that was implemented after the Pike River mining disaster.  

The Port of Auckland has already been fined after admitting it was responsible for the death of Mr Kalati.

The Whakaari/White Island eruption in 2019 resulted in the deaths of 22 people on the island managed by Whakaari Management Limited (WML). The Whakaari/White Island health and safety prosecution came to an end earlier this year with a number of defendants having pleaded guilty or been found to be guilty by the District Court under the HSWA.

Like Mr Gibson, Whakaari Management’s directors were also personally charged under the HSWA for failing to exercise the necessary due diligence to ensure WML complied with its health and safety duties.

In an oral ruling of the District Court on 5 September 2023 the charges against the directors as officers of WML were dismissed. The Court found that there was insufficient evidence to enable the court to assess whether the directors should be held personally liable.

The Court said that WorkSafe had not obtained copies of board or management meeting minutes from WML relating to its internal decision-making. This was largely because WorkSafe had initially recommended that no enforcement action be taken against the directors.

An officer under the HSWA is a person who occupies a position that allows them to exercise significant influence over the management of the business, such as a Chief Executive.

Officers must exercise due diligence to make sure that the business complies with its health and safety duties. The duty does not require officers to be directly involved in the day-to-day management of health and safety. However they are required to take reasonable steps to ensure the business meets its health and safety obligations to its workers and the public.

In smaller businesses, officers are more likely to have a hands-on role in health and safety. They are usually more directly in contact with workers and may oversee health and safety practices and investigate incidents. Read more....

Officers of larger businesses cannot rely on the fact that their business has a health and safety management system in place. They need to understand how it works, and take steps to make sure it is working.

The charges brought against the directors of WML indicate that the due diligence duty owed by officers of a business are personal to each officer and will be considered on a strictly individual basis. In the case of directors (as officers of a business), the court will be reluctant to draw inferences from the board acting as a whole; there must be evidence attributing responsibility or decision-making for a director to be held personally accountable.

Mr Gibson was undoubtably an officer of the Port of Auckland. He resigned in May 2021 citing "persistent and sometimes personal attacks". But his resignation came after an independent health and safety review found the need for significant changes. It found systemic problems with risk management and organisation. The review recommended several changes including new requirements for the Chief Executive to prioritise health and safety over profit and productivity along with improving trust and communication between management and staff. It also recommended a new health and safety manager who would report directly to the Board and Chief Executive.   

Subsequently, another stevedore at the Port of Auckland 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 at TAIC, 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”.

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.

The Port of Auckland company has already pleaded guilty and has been fined over Mr Kalati’s death. Mr Gibson, as an officer under the HSWA at the Port, was certainly in a position that allowed him to exercise significant influence over the management of the business. If convicted, Mr Gibson will be the first individual to be held accountable under the HSWA – a timely reminder for directors and senior management to take health and safety seriously. Read more....

All too often there are reports of migrant exploitation, usually in relation to minimum employment entitlements, but there still remain workplaces in New Zealand where workers suffer other unlawful abuse.

Last week the Employment Relations Authority found that an Invercargill dairy farmer had breached "numerous minimum employment standards" including manipulating payslips and unlawfully deducting money from the wages of three workers that came from Indonesia between December 2017 and February 2022. The farmer was ordered to pay over $215,000 in respect of the breaches.

But it is not only breaches of minimum entitlements that are an issue in our workplaces. In February this year the Human Rights Review Tribunal issued a decision finding that Itwinder Singh was racially harassed by his employer Stephen McKee.

Mr Singh worked for approximately 10 years as a stable hand for a thoroughbred racehorse training business that was owned initially by Mr McKee’s late father and from 2017 was owned by Mr McKee.

Mr Singh claimed that during his employment Mr McKee subjected him to racial harassment in breach of the Human Rights Act as he commented on and made fun of his Indian accent, made belittling remarks about Indians and objected to him and other staff speaking Hindi, telling them to speak English at work.

To be successful in his claim Mr Singh needed to establish on the standard of the balance of probabilities (a legal test that it happened) that:

• Mr McKee used the language complained of;

• The language either expressed hostility against Mr Singh or brought him into contempt or ridicule on the ground of his race, or ethnic, or national origin (being Indian);

• The language was hurtful or offensive to him; and

• The language was either repeated or of such a significant nature that it had a detrimental effect on his employment.

The Tribunal was satisfied that Mr Singh had established that Mr McKee:

• Regularly made remarks about Mr Singh’s accent, including making fun of it and mocking or imitating his accent

• Often objected to Mr Singh and other Indian staff conversing in Hindi and insisted that they speak English, including “C*** talk in English, I am paying you in dollars not rupees”; and “oi, I have told you c***s to speak in English at work”

• Made comments to Mr Singh that “It wouldn’t matter if an Indian dies, there would still be a billion left” and “How much do I owe you, $5 or $10, isn’t that what you get in India ”

In mitigation of this behaviour, Mr McKee acknowledged Mr Singh as being highly educated, highly intelligent, a New Zealand citizen who was not in the category of vulnerable employees who have a language difficulty, or lack education, or are subject to visa restrictions or requirements.

The Tribunal concluded that Mr Singh was racially harassed and that Mr McKee had breached the Human Rights Act. It said that Mr McKee had used language that brought Mr Singh into contempt and ridicule on the grounds of his race and ethnic or national origins. It found that the language used was hurtful and offensive and that it was repeated and had a detrimental effect on Mr Singh’s employment.

When it came to considering compensation, the Tribunal found the racial harassment Mr Singh was subjected to was not particularly hostile, but he had been subjected to it in his workplace by his employer repeatedly over nearly two years. As a result of the harassment the Tribunal accepted that Mr Singh had suffered humiliation, loss of dignity, and injury to his feelings and awarded him $10,000 compensation.

Most New Zealanders would consider, what Mr McKee described as “workplace banter”, as being abhorrent. While Mr Singh was able to stand up for himself, there will be far more that simply tolerate such behaviour because they are reliant on their job. It should not just be the Human Rights Tribunal that calls out such conduct, hopefully our workmates would do the same. Read more....

"Justice delayed is justice denied" is a legal and societal saying. It means that if legal redress to an injured party is available but it takes too long to achieve it, it is effectively the same as having no remedy at all.

The then Chief Justice of the United States, Warren E. Burger, noted in an address to the American Bar Association “the risk is that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets”.

In the recent decision of the Employment Court in Ugone v Star Moving Limited Judge Smith imposed a $20,000 fine on Stuart Biggs, the director and shareholder of Star Moving for his continued non-compliance with Court orders, and warned him that if other cases came before the Employment Relations Authority or the Employment Court for not complying with orders that he faces a serious risk of a custodial sentence.

Tovio Ugone was employed by Star Moving as an Operations Manager based at its Wellington Depot. Mr Ugone suffered a knee injury at work in June 2020. He could not work and went on ACC and was unable to return in any capacity until 13 August 2020.

After providing Star Moving with a letter confirming that he could return to work on restricted, sedentary, duties, Mr Ugone was provided with a letter stating that due to his extended absence and a restructuring of the Wellington Depot, that Star Moving had decided to disestablish his role as Operations Manager.

Mr Ugone claimed that he was unjustifiably dismissed. The Employment Relations Authority found that the letter provided to Mr Ugone amounted to a “sending away”; that Mr Ugone was unjustifiably dismissed. Mr Ugone was awarded $28,000 for lost wages, $27,500 compensation and costs of $5,000 (a $6,000 penalty was also imposed on Star Moving for failing to supply Mr Ugone’s employment agreement).

When Star Moving failed to pay, Mr Ugone asked for compliance orders from the Authority. When making the compliance orders in May 2023 the Authority was also satisfied that Stuart Biggs, as the sole director of Star Moving, was responsible for the earlier orders not being complied with and that he was in a position to prevent further non-compliance by the company; compliance orders were made against him personally.

Despite the compliance orders the debt owed by Star Moving to Mr Ugone was still not paid until August 2023, just before liquidation proceedings involving Star Moving were to be heard in the High Court.

Mr Ugone asked for further remedies against Star Moving and Mr Biggs; a fine and a custodial sentence were requested.

Where any person fails to follow a compliance order made by the Authority, the person affected by the failure to comply can ask the Employment Court to exercise its powers under the Employment Relations Act to order that the person in default:

• to be sentenced to imprisonment for a term not exceeding three months;

• order that the person in default be fined a sum not exceeding $40,000;

• order that the property of the person in default be sequestered.

The Court of Appeal has confirmed that a fine may be imposed even where compliance had been achieved, although that is be a factor in assessing the amount of any fine. Similarly, cases also confirm that it is not necessary for a party to first try and get enforcement in the District Court before requesting a fine in the Employment Court.

In another case, a fine of $7,500 was imposed for what the Court considered was a deliberate and flagrant breach of the compliance order. The former employee had forwarded emails containing links to confidential documents to newly elected members of the employer (a local authority). Even that was not enough of a deterrent in that case, a further decision was necessary as the Court’s two previous financial orders had failed to stop the employee. The employee was sentenced to a 21 day term of imprisonment.

Returning to Mr Ugone’s situation, in imposing the $20,000 fine on Mr Biggs the Court referred to a number of decisions involving other parties involving Mr Biggs that it said showed a theme that companies Mr Biggs controls do not comply with orders made against them unless under compulsion. The Court said that this must influence the amount of uplift in the fine.

For Mr Ugone the law has fulfilled its primary function of protecting legal rights. Mr Ugone was successful in his claim in the Authority. Mr Ugone has finally been paid for the wrong-doing that occurred in 2020. Mr Biggs has now been fined, and has been warned that a custodial sentence may be imposed should there be further non-compliance. While Mr Ugone has had to go to extraordinary lengths to get his debt satisfied, maybe justice has been done? Read more....

Published Human Resources Magazine Autumn 2024

Successful businesses tend to be agile and adapt to changing circumstances. Finding the right solution for the employer is as important as managing the change to resolve the situation.

Failing to manage that change may result in the employment relationship being terminated with the employer facing substantial claims, as the employer found in the recent case of LNF v Department of Corrections in the Employment Relations Authority.

In 2019 Corrections advertised a role with a position description that was dated 2007. The intention was for the role to be split 80% in one team and 20% in another team, and while it required some administrative work in both teams the work was at a more senior level. While it was the intention to explain the position more thoroughly through the interview process, this was not successfully communicated.

Corrections has a complicated organisational structure, which was further complicated with managers and staff being seconded into alternative positions for periods of time. The situation became “messy” within the first few weeks of LNF’s employment. LNF started raising issues with her managers about her role, including where she sat in the team structure. There was additional conflict with a colleague regarding boundaries between their two roles, with the colleague believing that LNF was stepping into her role.

Her manager saw the situation as a personality conflict and suggested that LNF move into his team. LNF was not persuaded that the move would improve the situation. Matters came to a head and there was an altercation between LNF and her colleague. A mediation was proposed, but LNF was not prepared to attend mediation.

LNF was moved into her manager’s team on a full-time basis. Although her manager believed that all the parties were content with the arrangement, LNF continued to have an issue with the lack of clarity she perceived in her role. Her manager tried to define what work LNF had been doing and to find meaningful full-time work for her. He started discussions about “how do we fill in your day” and discussions regarding a job description. LNF started to look for other work at Corrections because she felt like she was still getting caught in the crossfire.

A formal letter was given to LNF offering her a variation of employment with a confirmation of duties. LNF did not agree and contacted her union. Numerous meetings where held with LNF and her representative. LNF received a payrise, the explanation being that there were no performance issues as there was no job description to measure performance against. Mediation was again discussed.

LNF’s managers then considered disestablishing the type of role LNF was employed to do on the basis that the support in the region was more administrative than advisory. LNF was the only employee in that type of role in the region, so LNF was the only employee effected. LNF provided feedback that the current state was that the role she was employed to do did not exist; that she had worked in an undefined role; and that her manager had failed to actively and constructively remedy this for two years. She said that the proposal had been specifically drafted to remove her from the organisation.

After a mediation was attended, LNF was advised that her role was disestablished and Corrections would work with her to explore alternatives. There was no discussion with LNF about redeployment, partly due to there being no agreement about her tasks. Months later LNF received a formal notice of severance.

LNF raised personal grievance claims and argued that Corrections used a restructure process to terminate her employment, following a long-lasting and unresolved employment relationship problem.

The Employment Relations Authority agreed, and found that the redundancy was not genuine and was used to justify the termination of LNF’s employment. LNF was awarded 6 months lost remuneration and $23,000 compensation.

As part of its reasoning it appears that the Authority thought that Corrections could have initiated a formal review of LNF’s role, and the basis of the review findings would have supported Correction’s position. The Authority appears to have significantly downplayed the many discussions that were held with LNF regarding her role and attempts to find her meaningful alternative work.

The decision demonstrates that it is important in change management to clearly understand the issue, identify possible options and engage promptly with staff likely to be effected.   Read more...

Human Resources Magazine