Local Govt | National News Video | Parliament Headlines | Politics Headlines | Search


Can an employer be held accountable for the unforeseeable?

17 October 2013

Security Guard Death – Can an employer be held accountable for the unforeseeable?

Employers face prosecution if they fail to take all reasonably practicable steps to ensure the safety of their employees while at work.

But the employer is unlikely to be held liable when it can be shown that, even if all such steps were taken, this is unlikely to have prevented the serious and unanticipated harm.

Earlier this week, a court ruled that the company that employed Auckland security guard Charanpreet Dhaliwal could not be held accountable for his death.
CNE Security was charged with failing to adequately ensure Mr Dhaliwal's safety, but in a judgment released by the Waitakere District Court, the company was found not guilty.
Mr Dhaliwal was killed in November 2011 on his first night on the job as a static security officer at a base campsite for workers engaged on an interchange development. The case, brought by the Ministry of Business Innovation,looked at the extent to which CNE was responsible for the death.

The site where Mr Dhaliwal died was regarded by both CNE and site controllers Fulton Hogan as low risk. CNE had not been fully informed about previous incidents on-site and although it was his first day, Mr Dhaliwal was an experienced guard who had previously done work that was more difficult compared to the basic work of a static guard.

It is possible the result might be different if an employee had little or no previous experience - especially if the employer was aware of previous serious incidents on the site as the of risk of harm could be much greater.

The facts
CNE was engaged by Fulton Hogan Ltd to provide security at the site, which contained port-a-coms, a few containers and various construction equipment. The site had experienced several break-ins at night. The static security guard was to perform hourly checks of the buildings and gates, with a log to be completed in one of the port-a-coms.

Mr Dhaliwal called the owner of CNE to seek work and was told he would be contacted if there was any work available. A few weeks later, CNE called Mr Dhaliwal and asked him to work that night, as another employee needed the night off. He accepted and agreed to meet the CNE’s owner on-site at 10.30pm.

When Mr Dhaliwal arrived he was provided with the site keys, a high-visibility vest and a business card containing the owner’s 0800 number so he could be contracted throughout the night. He was then walked around the premises by another employee, showing him the keys for the gate and port-a-coms, how to set and unset the alarm, the boundaries and how to complete the log book. The employee then took Mr Dhaliwal’s mobile number to pass on to the owner and left.

That was last anyone heard from Mr Dhaliwal. He was found dead at approximately 3.30am by a Fulton Hogan employee.

The decision
The MBIE informant inspector suggested two practicable steps CNE could have taken to ensure the safety of its staff. First, ensuring its security officers received appropriate induction and site training and second, having an effective procedure to monitor CNE’s staff.

Judge Tremewan accepted that, given that there were no potentially hazardous construction or building issues and no restricted areas on-site, it could be properly regarded as a low risk site. She also held that the comparatively minor incidents did not indicate that a physical confrontation was a likely risk.

The Judge acknowledged that texting as a means of checking on staff was an appropriate step that CNE should have taken., she believed that such monitoring would still not prevent an attack occurring, but it would allow CNE to respond faster to any potential problems, and possibly reduce the resulting harm.

Ultimately, the Judge decided that even if CNE had taken the steps suggested by the MBIE informant, these would not have made any difference to what occurred.

The Council of Trade Unions is seeking to appeal the decision.

·       Mark Lawlor is a specialist employment law partner at Duncan Cotterill in Auckland and Jessie Lapthorne is an associate. Mark.lawlor@DuncanCotterill.com


© Scoop Media

Parliament Headlines | Politics Headlines | Regional Headlines



Australia Deportations: English Relaxed On Immigration Centre Conditions

Labour's Annette King: “There have been numerous reports from inside these detention centres on just how bad conditions are... If they were being held in any other foreign jail, I imagine Mr English would be somewhat concerned. More>>


Schools: Achievement-Based Funding Would Be A Disaster

The Education Minister’s speech to the PPTA Conference raising the spectre of achievement data driving a new funding system would be disastrous, says NZEI Te Riu Roa. More>>

  • Video Out-Link - PPTA Annual Conference 2015 on Livestream (Q+A dicussion suggests funding would be directed to less successful schools.)

  • ALSO:

    ECE Report:

    Key In NY: Prime Minister Addresses United Nations

    Prime Minister John Key has addressed the United Nations General Assembly in New York, focusing on a call for action in Syria and on other conflicts, reform of the veto process and on the UN’s Sustainable Development Goals. More>>.


    Gordon Campbell: On The Lack Of Accountability Over Philip Smith

    In New Zealand, accountability is an exotic creature rarely glimpsed at ministerial level, or among senior management. The flight to Rio by the paedophile /murderer Philip John Smith/Traynor is no exception. More>>


    More On Corrections

    Gordon Campbell: On Putin’s Diplomatic Coup Over Syria

    There’s a simple historical precedent for what is occurring in Syria. During WWII, the Allies joined forces with a known butcher and tyrant – Joseph Stalin of the Soviet Union – in order to defeat a greater evil, Nazi Germany… More>>


    Key 'Didn't Know': Brownlee Seeks Pandas In China

    While Defence Minister Gerry Brownlee is in China pushing a taxpayer funded deal to bring two pandas to New Zealand, the country’s military look set to be hit with a pay freeze, Opposition Leader Andrew Little says. More>>


    Scoop Business: GCSB Willing To Extend Cyber-Attack Programme To Local ISPs

    The Government Communications Security Bureau’s ‘Cortex’ cyber-security programme has been successful in helping identify and mitigate a series of cyber attacks since its introduction and an extension to cover local internet service providers is still on the cards... More>>


    Get More From Scoop



    Search Scoop  
    Powered by Vodafone
    NZ independent news