With sentencing set to take place this month the convictions for Whakaari (White Island) Whakaari Management Limited (WML) as mangers/ controllers of a workplace provide a salient reminder for employers to be vigilant:
The Whakaari/White Island volcanic eruption in December 2019 was a tragic event that resulted in the loss of many lives.
The District Court of New Zealand heard the case brought by WorkSafe NZ against Whakaari Management Ltd under the Health and Safety at Work Act 2015 [1].
The judge-alone trial began on Monday 10 July 2023 at the Specialist Courts and Tribunals Centre in Auckland and Judge Thomas has given his judgment [1].
On 31 October 2023 the company was convicted of the charge under Section 37 of the Health and Safety at Work Act 2015 and convicted [2].
The charge under Section 36 of the Health and Safety at Work Act 2015 was dismissed [2].
From an employment law perspective, this case highlights the importance of ensuring that employers provide a safe working environment for their employees. The island was deemed to be a workplace for the Health and Safety legislation.
Employers have a legal obligation to take all reasonably practicable steps to ensure the health and safety of their employees while they are at work [3].
This includes identifying and managing risks, providing appropriate training and supervision, and ensuring that employees have access to the necessary equipment and resources to perform their work safely.
The company argued that it was only the landowner. The Court disagreed. As landowner it managed and controlled the place of work for employees. Significant to the decision was the fact that the company received income from allowing the walking tours for tourists in the island. It had the ability to grant and cancel licences for those tours. It held active involvement through the granting of those licences and therefore had legal safety responsibilities which included assessing the likelihood of hazard or risk presented by the volcano and taking reasonably practicable steps to minimise those risks.
It was a PCBU (person conducting a business or undertaking) in respect of the island.
In the case of Whakaari Management Ltd, the company was charged with failing to ensure the health and safety of employees working on the island and failing to ensure that no action or inaction of any employee harmed any other person [1].
The company was found guilty of the charge under Section 37 of the Health and Safety at Work Act 2015, which relates to the duty of a person conducting a business or undertaking to ensure that no action or inaction of any employee harms any other person [2].
The charge under Section 36 of the Health and Safety at Work Act 2015, which relates to the duty of a person conducting a business or undertaking to ensure the health and safety of workers, was dismissed [2].
Ignorance was no excuse. The Court considered that whilst there was no evidence WML had deliberately ignored its safety and health responsibilities the case highlighted the need to be vigilant and take expert advise from the outset as to potential hazards. The volcano was a known ticking time bomb. It had erupted before. There should have been no surprise the Court said it could erupt again without warning with the risk or death or serious injury to tourists and tour guides.
This case serves as a reminder to employers of the importance of complying with their legal obligations under the Health and Safety at Work Act 2015. Employers must take all reasonably practicable steps to ensure the health and safety of their employees while they are at work.
Failure to do so can result in serious consequences, including legal action and criminal charges.
Sentencing of Whakaari Management and the six other guilty parties will begin on 26 February 2024 and take up to two weeks. We will watch this space.
[1]: WorkSafe prosecutions relating to the Whakaari-White Island disaster
[2]: Whakaari-White Island criminal trial ends | New Zealand Ministry of Justice
[3]:Health and Safety at Work Act 2015
