Officer prosecutions – a new health and safety at work trend

There appears to be a trend of increasing officer prosecutions under the Health and Safety at Work Act 2015 (‘HSWA’) being prosecuted by WorkSafe New Zealand, with two recent decisions (WorkSafe New Zealand v Cheuk [2022] NZDC 14786 and WorkSafe New Zealand v Smoke Control NZ Ltd [2021] NZDC 17446). This is a development that sees charges being placed on individuals as well as, or instead of, the companies themselves.

Both cases involved small owner operator businesses and the death of a worker, with the directors being charged with (among other things) failing to ensure that the workers had appropriate safety gear and that they were trained to use it. In the Cheuk case, where the director liquidated the company before prosecution could occur, the Court determined that liquidation could not provide an escape from health and safety accountability, resulting in the prosecution of the director.

These cases highlight the importance of ‘coal face’ managers and directors ensuring their workers have appropriate PPE and the training to know how to use it correctly. This trend applies more to small and medium businesses where managers are involved in the operational work, but it should be highlighted there is a current prosecution against the former CEO of Ports of Auckland, which opens the door to potential ‘executive officer’ level liability, including for larger corporate entities.

If you need advice on HSWA matters, or are being investigated or charged under HSWA by WorkSafe New Zealand in a maritime context, please contact Peter Dawson by email peter@maritimelaw.co.nz; phone +64 27 229 9624, or Troy Stade by email troy@maritimelaw.co.nz; phone +64 27 368 6730.