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February 2025 Update
A recent case Maritime New Zealand v Anthony Michael Gibson [ 2024] NZDC 27975 has involved the first time a CEO of a large company has been charged individually under the Health and safety at Work Act (HSWA) for a breach of health and safety duties in relation to the death of a worker at the Port of Auckland(POA).
Background
A Ports of Auckland (POAL) worker, Pala’amo Kalati , a father of seven, was killed in a tragic accident after being crushed by a falling container on 30 August 2020. On the night of the incident, Mr Kalati was working near an operating crane in violation of POAL's three-container-width rule, which requires workers to maintain a 7.3-metre distance from operating cranes. This policy was designed to prevent accidents caused by falling containers or other equipment but was inconsistently enforced. The incident occurred because a twist-lock mechanism on a container failed during a crane operation, causing the container to fall and fatally strike Mr Kalat
Maritime NZ, as the relevant health and safety regulator, charged both POAL as a PCBU and its now ex-CEO as an Officer.
The former CEO was employed for 10 years until June 2021. He was charged with two charges under sections 48(1) and 49(1) HSWA, which both alleged that he failed to comply with the duty to exercise due diligence as an officer to ensure that POAL complied with its duties under the HSWA.
The section 48 HSWA charge is the greater charge because it connects the due diligence obligation with the exposure of a worker to death or serious injury.
Decision
The facts of the case were fundamental to the decision reached by ADC.
- Unsafe practices. Policies existed but poorly communicated to workers
- POAL was aware of unsafe practices, and POAL officers responsibility, including the ex-CEO, to ensure they had adequate systems in place.
- POAL’s training and policy in relation to the exclusion zone surrounding cranes were confusing and inconsistent, especially around co-ordination of lashers and crane operators.
- The risks involved in handing suspended loads well recognised within the industry.
- The former CEO, as a “hands on” CEO, had responsible for health and safety at POAL.
- Issues within the health and safety systems had been highlighted by audit reports. POAL’s management had accepted the recommendations but they were not actioned in a timely manner. The ex-CEO was aware of these recommendations and the judge found it was his duty as CEO at the time to ensure POAL progressed these matters in a timely matter.
- He failed to ensure that POAL’s Health and Safety Steering Committee was adequately performing its functions.
- POAL had a history of safety incidents and previous incidents meaning CEO should have been on notice about these
The Auckland District Court (ADC) found that the former CEO was guilty on the charge laid under section 48 (1) HSWA. This was because the ADC found the ex-CEO failed to exercise due diligence in ensuring that POAL complied with its primary duty of care by ensuring all reasonably practicable steps were taken to prevent harm to its workers. This failure exposed workers to risk of death or serious injury.
Specifically ADC commented that given the CEO’s knowledge and experience and the particular circumstances, he should have recognised the shortfalls in POAL’s management of exclusion zones around cranes working over ships and ensure that POAL utilised ”appropriate resources” and resources to address those shortfalls. Furthermore he was found to rely too heavily on subordinate managers without personally checking effectiveness of safety measures or ensure proper oversight.
ADC was satisfied that the threshold of beyond reasonable doubt was reached with the former CEO failing to exercise the care, diligence and skill a reasonable officer would have exercised in the same circumstances
Penalties
Tony Gibson, the former Chief Executive of Port of Auckland Limited (POAL), has now been sentenced.
Mr Gibson was fined $130,000 and ordered to pay $60,000 in costs to Maritime New Zealand. Maritime New Zealand’s director and chief executive, Kirstie Hewlett, commented that she hopes the case will be a “strong reminder” to chief executives of large companies that they need to understand the risks of their business and put in place effective controls and systems to mitigate those risks.
Key Takeaways
- Officers of all organisations have significant personal liability under the HSWA in addition to ensuring the PCBU provides for the health and safety of workers in the workplace.
- Officers should not rely simply on their health and safety personnel for health and safety matters. As the HSWA requires, Officers need to be actively monitoring, reviewing and auditing their health and safety systems to ensure proper due diligence and therefore compliance is achieved by the PCBU
- Complete responsibility for health and safety for health and safety measures cannot be transferred by an Officer.
- Officers must proactively understand the health and safety issues and ensure that appropriate policies and procedures are implemented, enforced and maintained (including regularly updating, revising and appropriately resourcing those systems). A reasonable understanding of existing and new health and safety matters is also essential.
This tragic case serves a salutary lesson to all employers to take health and safety matters seriously at all times and regularly review how effectively your current health and safety systems are working in practice. Business Canterbury has a learning programme that assists Managers to meet their health and safety obligations under the HSWA. Refer for details of this programme below.
For specialist advice in this area, please contact me at michaelp@cecc.org.nz.
