Health and Safety Breaches

Under the Health and Safety at Work Act 2015, employers have a primary duty of care to ensure the health and safety of their workers. This isn't just about providing safety equipment - it's a comprehensive obligation that covers identifying hazards, assessing risks, implementing control measures, and maintaining a safe work environment.

Employers must provide adequate training, supervision, and information about workplace hazards. They're required to consult with workers on health and safety matters and must not expose anyone to risks arising from their business operations. This duty extends beyond employees to contractors, visitors, and anyone who might be affected by the work being carried out.

The duty of care is ongoing and requires employers to stay current with safety standards, regularly review their practices, and respond promptly to new hazards or incidents. When employers fail in these duties, they face both regulatory penalties from WorkSafe and potential civil liability to affected workers.

Importantly, these duties cannot be delegated away entirely. While employers can appoint safety officers or engage consultants, the ultimate responsibility for workplace safety remains with the person conducting the business or undertaking (PCBU).

Workplace safety breaches take many forms, from obvious physical hazards to more subtle systemic failures. Physical hazards include unsafe machinery, inadequate fall protection, exposure to hazardous substances, and poor housekeeping that creates slip and trip risks. These are often the most visible breaches but may not always be the most serious in terms of long-term health impact.

Systemic breaches are equally dangerous and include inadequate training, failure to conduct risk assessments, poor emergency procedures, and lack of safety consultation with workers. These breaches often underlie physical incidents and can indicate a broader culture of safety neglect within the organisation.

Psychosocial hazards are increasingly recognised as serious safety breaches. This includes exposure to workplace stress, bullying and harassment, excessive workloads, and poor work design that creates mental health risks. These breaches can be harder to identify but often have severe long-term consequences for workers.

Retaliation against workers who raise safety concerns is another serious breach. This might involve disciplinary action, reduced hours, or even dismissal following safety complaints. Such retaliation not only harms individual workers but undermines the entire safety culture of the workplace.

Workers have extensive rights when it comes to workplace safety, starting with the fundamental right to a safe working environment. You have the right to be consulted on safety matters, to receive adequate training and information about hazards, and to have safety concerns taken seriously by your employer.

One of the most important rights is the ability to refuse unsafe work. If you reasonably believe that carrying out work would expose you or others to serious risk, you can refuse to do that work. This right is protected - your employer cannot dismiss you or take disciplinary action for exercising it in good faith.

You also have the right to elect health and safety representatives in workplaces with 20 or more workers, or where requested by workers in smaller workplaces. These representatives have specific powers to investigate incidents, inspect the workplace, and represent workers in safety consultations with management.

If you suffer retaliation for raising safety concerns, you may have grounds for a personal grievance claim. This protection extends to reporting safety issues to WorkSafe, participating in safety investigations, or simply expressing concerns about workplace hazards to your employer.

Effective reporting of safety issues requires a systematic approach that protects both your immediate safety and your legal position. Start by documenting the hazard thoroughly - take photographs, note dates and times, and describe the specific risks involved. Keep detailed records of any symptoms or incidents related to the safety issue.

Report the issue to your employer in writing, clearly describing the hazard and requesting specific action to address it. Keep copies of all correspondence and note any verbal discussions about the issue. If your workplace has health and safety representatives, involve them in the process as they have specific powers to investigate and advocate for safety improvements.

If your employer fails to address serious safety concerns, you can report the issue to WorkSafe New Zealand. WorkSafe has the power to investigate, issue improvement notices, and prosecute employers for serious breaches. Their involvement can provide independent validation of your safety concerns and pressure employers to take action.

Throughout this process, be aware that some employers may react defensively to safety complaints. Document any negative responses, changes in treatment, or disciplinary actions that follow your safety reports. This evidence could be crucial if you later need to pursue an employment law claim for retaliation.

Safety issues transform into employment disputes when employers fail to address hazards, retaliate against workers who raise concerns, or when safety breaches result in injury or illness. The transition often occurs gradually, starting with unaddressed safety concerns and escalating through employer defensiveness to active retaliation against the complaining worker.

Retaliation is one of the most common ways safety issues become employment disputes. This might involve disciplinary action against workers who refuse unsafe work, reduced hours or responsibilities following safety complaints, or even dismissal of workers who report hazards to WorkSafe. Such actions can form the basis of personal grievance claims for unfair dismissal or disadvantage.

Safety breaches can also lead to disputes when workers develop health conditions related to workplace exposures. These cases often involve complex questions about causation, the adequacy of employer safety measures, and the interaction between ACC coverage and employment law remedies. Workers may find themselves unable to perform their usual duties while also facing pressure from employers to return to unsafe conditions.

Constructive dismissal can occur when safety issues make the workplace so intolerable that workers feel forced to resign. If an employer's failure to address serious safety concerns creates an impossible working environment, the worker may have grounds for a constructive dismissal claim even though they technically resigned.

Strong documentation is crucial in health and safety employment cases because these disputes often involve technical issues, gradual health impacts, and competing versions of events. Start documenting from the moment you identify a safety concern, not just after problems escalate into formal disputes.

Photographic evidence is particularly powerful in safety cases. Take clear photos of hazards, unsafe conditions, inadequate safety equipment, and any visible signs of workplace health impacts. Date and time stamp these images, and store them securely outside of work systems to prevent loss or tampering.

Medical documentation becomes critical if you develop health problems related to workplace safety issues. Keep detailed records of symptoms, medical appointments, and any advice from healthcare providers about workplace exposures. This evidence helps establish the link between safety breaches and personal harm.

Communication records are equally important. Save all emails, letters, and text messages related to safety concerns, including your reports to management and their responses. Keep notes of verbal conversations, including dates, participants, and key points discussed. This paper trail demonstrates your efforts to address issues through proper channels.

Witness statements from colleagues can strengthen your case, particularly if they observed the same hazards or experienced similar problems. However, be sensitive to the fact that colleagues may be reluctant to get involved due to fear of retaliation from the employer.

Compensation for health and safety breaches can come from multiple sources, each serving different purposes and covering different types of harm. Understanding these various pathways is important because you may be entitled to pursue several simultaneously, depending on your circumstances.

ACC provides coverage for treatment costs and some income replacement if you suffer injury from workplace safety breaches. However, ACC coverage doesn't prevent you from pursuing additional compensation through employment law claims for losses not covered by ACC, such as humiliation, loss of dignity, and career impact.

Personal grievance claims can result in compensation for the distress and disadvantage caused by safety breaches or retaliation. This might include compensation for the stress of working in unsafe conditions, the impact of disciplinary action taken in retaliation for safety complaints, or the career consequences of being dismissed for raising safety concerns.

In serious cases involving significant employer negligence, you may be able to pursue damages beyond the usual personal grievance remedies. This could include compensation for lost career opportunities, ongoing health impacts, and the costs of finding alternative employment in a different field if your health has been permanently affected.

Reinstatement may be available if you've been dismissed in retaliation for raising safety concerns, though this remedy is often impractical in safety cases where the underlying workplace culture problems remain unaddressed. Alternative remedies might include enhanced compensation packages or assistance with finding suitable alternative employment.

Legal advice becomes crucial as soon as you face retaliation for raising safety concerns or when your employer fails to address serious hazards despite your reports. Don't wait until you're dismissed or seriously injured - early legal intervention can often prevent problems from escalating and protect your position if formal action becomes necessary.

Seek legal advice immediately if your employer takes any disciplinary action following your safety complaints, reduces your hours or responsibilities, or threatens your job security. These actions may constitute retaliation and could form the basis of a personal grievance claim, but time limits apply and early action is often more effective.

If you develop health problems that may be related to workplace safety breaches, legal advice can help you understand the interaction between ACC coverage, employment law remedies, and potential civil claims. These cases often involve complex medical and legal issues that require specialist expertise to navigate effectively.

Consider legal advice before making any formal complaints to WorkSafe, particularly if you're concerned about potential retaliation from your employer. A lawyer can help you understand your rights, develop a strategy that protects your employment while addressing safety concerns, and ensure you're documenting issues in a way that supports potential future legal action.

Remember that employment lawyers experienced in health and safety cases understand both the regulatory framework and employment law remedies. They can help you coordinate different legal pathways and ensure you're maximising your protection and potential compensation while addressing the underlying safety issues.