The District Court has convicted a not for profit charity
following a serious injury to one of its workers in an unguarded machine.
The employer is a charity providing employment
opportunities to mainly disabled people in the Southland community. The worker injured was one of the supervisors
and was injured when they ignored safety procedures and climbed into a
machine. They became trapped in the
blades of the machine and suffered serious leg injuries.
The District Court decided to discharge the charity
without conviction because the charity had taken its health and safety
responsibilities very seriously and had engaged an expert in the field to
undertake annual audits of its health and safety procedures. That expert had failed to pick up the need
for a guard on this particular part of the machine and the employer did not
realise that a guard was required on this particular part of the machine
because it never expected any employee to climb into that machine.
The Court said that this was not a case where an employer
had ignored its responsibilities, but the employer in this case had taken them
seriously, had put in place operating procedures to avoid accidents and had
engaged experts to assist it with that process.
All of those actions, however failed to prevent the accident and a guard
on that part of the machine was required.
A guard was able to be installed within an hour of the accident.
The Court emphasised that the discharge without conviction
(the first reported discharge without conviction under the Act) was not to be
taken as a precedent for other cases as the facts here were very abnormal and
that normally convictions will be entered.
The employer had already paid the employee quite a substantial
amount of reparation and was ordered to pay an additional $10,000
reparation. No fine or costs were
imposed on the employer because of their charitable status and the fact that
they had no money to pay any fine or penalties.
The imposition of such a fine would have merely put all of the disabled
people employed at the workplace out of work.
Alan
Knowsley
Employment Lawyer Wellington
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