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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


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