Introduction

Impairment arising from fatigue poses significant safety risks to employees and self-employed people Not only can fatigue-related impairment have serious consequences for individual employees, it can also have major consequences for public safety. 

Any number of examples of fatigue-related impairment can be identified, for example:

• Delayed reaction times (eg a pilot doesn’t immediately respond to a hazard at takeoff)
• Reduced vigilance (eg a factory control room operator fails to quickly pick up a process problem
•  Impaired hand-eye coordination (eg a fitter putting together a critical component misjudges its assembly
• Reduced ability for complex decision making (eg an air traffic controller finds it difficult to sequence aircraft landings.
•  Reduced ability to communicate (eg an emergency room doctor gives confusing instructions on a procedure
•  Risk of micro-sleeps (eg a school bus driver dozes off and crosses to the other side of a country road).[1]

Clearly fatigue symptoms such as these can lead to harm.  Employers have obligations to take all practicable steps to ensure that fatigue is not likely to cause harm.  In particular, employers need to have systems which identify and deal with fatigue when it may affect safety in the workplace.

What are an employer’s legal obligations?

Health and Safety in Employment Act 1992

The object of the Health and Safety in Employment Act 1992 (‘HSE Act’) is to promote the prevention of harm to all persons at work and other persons in, or in the vicinity of, a place of work.  One of the ways this object is said to be achieved is by recognising that successful management of health and safety issues is best achieved through good faith co-operation in the place of work.

The HSE places duties on various persons in the workplace including employers, persons who control places of work, self-employed people and employees.  The most onerous of these duties are of course placed on employers in relation to their employees.  Section 6 of the HSE Act provides:

Every employer shall take all practicable steps to ensure the safety of employees while at work; and in particular shall take all practicable steps to—

(a)     Provide and maintain for employees a safe working environment; and

(b)     Provide and maintain for employees while they are at work facilities for their safety and health; and

(c)     Ensure that plant used by any employee at work is so arranged, designed, made, and maintained that it is safe for the employee to use; and

(d)     Ensure that while at work employees are not exposed to hazards arising out of the arrangement, disposal, manipulation, organisation, processing, storage, transport, working, or use of things—

(i)In their place of work; or

(ii)Near their place of work and under the employer's control; and

(e)   Develop procedures for dealing with emergencies that may arise while employees are at work.

“Safe” and “safety” are defined in section 2(1) in relation to a person as “not exposed to any hazards”. The practicable steps set out in section 6 is not an exclusive list.  In other words, particular practicable steps will be identified in the unique circumstances of a case, whether or not those steps appear under section 6 or elsewhere in the HSE Act. 

Employers have a number of other legal obligations. Section 7 of the HSE Act sets out that:

(1)     Every employer shall ensure that there are in place effective methods for—

(a)Systematically identifying existing hazards to employees at work; and

(b)Systematically identifying (if possible before, and otherwise as, they arise) new hazards to employees at work; and

(c)Regularly assessing each hazard identified, and determining whether or not it is a significant hazard.

Importantly, “Hazards” are broadly defined under section 2(1) HSE Act:

 hazard —

(a)     means an activity, arrangement, circumstance, event, occurrence, phenomenon, process, situation, or substance (whether arising or caused within or outside a place of work) that is an actual or potential cause or source of harm; and

(b)     includes—

(i)a situation where a person's behaviour may be an actual or potential cause or source of harm to the person or another person; and

(ii)without limitation, a situation described in subparagraph (i) resulting from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person's behaviour. [Emphasis added]

It is therefore clear the HSE Act requires employers to take all practicable steps to prevent harm to employees from hazard of fatigue and fatigue-related impairment.

Section 8 requires employers to take all practicable steps to eliminate significant hazards to employees. If a significant hazard cannot be eliminated the employer must take all practicable steps to isolate it from employees (section 9). Where elimination and isolation are impracticable significant hazards must be minimised (section 10).

The obligations on an employer are therefore uncompromising and onerous[2].

Employees are not exempt from responsibility under the HSE Act, which places a duty on employees to ensure that no action or inaction of theirs harms others (section 19).  However, employers also have a duty to take all practicable steps to ensure that the actions or inactions of its employees while at work do not harm any other person (section 15).  This means that employers have a larger duty to ensure its employees do not harm the public. 

Employment Agreements

Employers have legal obligations to employees pursuant to its employment relationships with them.  Most notably, in Attorney General v Gilbert [2002] ERNZ 31 the Court of Appeal said:

“[83]…Foreseeability of harm and its risk will be important in considering whether an employer has failed to take all practicable steps to overcome it. These assessments

must take account of the current state of knowledge and not be made with the benefit

of hindsight. An employer does not guarantee to cocoon employees from stress and upset, nor is the employer a guarantor of the safety or health of the employee. Whether workplace stress is unreasonable is a matter of judgment on the facts. It may turn upon the nature of the job being performed as well as the workplace conditions. The employer’s obligation will vary according to the particular circumstances. The contractual obligation requires reasonable steps which are proportionate to known and avoidable risks.”

All employment agreements have terms implied into them which impose duties on employers to take reasonable steps to maintain a safe workplace.  Often this duty is also expressly stated in employment agreements.

What does an employer need to know in order to fulfil its legal obligations to staff?

By way of guidance, the Department of Labour encourages employers to adopt an approach to fatigue management that follows a core set of principles:

• Responsibility — a single manager has specific responsibility for shift-work management
• Consultative decision-making - that includes workers and management, is promoted and used
• The control of roster design and management is shifted to workers and shift teams
• An appropriate induction, with information and advice about shift-work is provided
• Education and training is extensive and ongoing
• Partners and families are included in the consultation, education and training
• Equivalent facilities are provided for shift and dayworkers.[3]

The Department of Labour has published useful resources which can be found on its Health and Safety website (http://www.osh.govt.nz/).  Publications include:

• Managing Shift Work to Minimise Workplace Fatigue – A Guide for Employers
• Managing Shift Work to Minimise Workplace Fatigue – A Guide for Small Employers
• Shift-work, Reducing its Affect of Health and Safety – Advice for Employers and Employees
• Stress and Fatigue, Their Impact on the Workplace.

Managing Shift Work to Minimise Workplace Fatigue – A Guide for Employers identifies a number of practicable steps an employer could use including:

• Reducing night work to the minimum possible
• Ensuring no worker spends more than 2–4 days on any one night shift
• Providing a minimum of 2 full nights’ recovery after 2–4 night shifts
• Rotating shifts forward (usually,although some rosters can work with backward rotation)
• Avoiding rosters that require starting work before 6.00am
• Implementing responsible alternatives where the measures above cannot be implemented
• Systematically identifying hazards and assessing their significance in relation to shift work, including:
• Identifying risks in tasks to be performed
• Assessing the risk of performing tasks when workers are fatigued.
• Eliminating, isolating or minimizing fatigue hazards, in that order of priority.
• When employees face significant hazards, monitor their hours of work and their health.
• Providing information, training, and supervision for shift workers and health and safety representatives.
• Ensuring that accident investigations consider whether fatigue was a contributing factor.

 

For obvious reasons, there can be no “one-size-fits-all” approach to how fatigue hazards should be managed. There are numerous experts in the field who can be consulted if employers are having difficulty working out what is best for their organisation.

 

Where are the most common areas where employers can fail and subsequently face legal action?

If an employer has not taken all practicable steps having regard to these factors in particular circumstances, they could face criminal prosecution under the HSE Act.  No harm is required to have been suffered by anyone for an employer to face prosecution under the HSE Act.  

When a criminal charge is laid under section 6 of the HSE Act, the core element of the charge that must be proved against a defendant employer is that the employer has failed to take all practicable steps to ensure the safety of an employee.  It is important to understand that the section 6 obligation does not mean that an employer must prevent injury in all circumstances.  An employer must take all the steps that it is practicable for it to take at the time.  A Court will assess what was practicable at the point in time immediately before the accident happens.  Perhaps for obvious reasons, whether appropriate steps have been taken appears to be the element most commonly disputed by employers. 

 Taking “all practicable steps” means taking all steps it is reasonably practicable in the circumstances, having regard to:

•           the nature and severity of the harm that may be suffered if the result is not achieved; and

•           the current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and

•           the current state of knowledge about harm of that nature; and

•           the current state of knowledge about the means available to achieve the result, and about the likely efficacy of each of those means; and

•           the availability and cost of each of those means.

In other words, what a specific employer is expected to do about a particular hazard will depend on a number of factors.  If an obvious hazard is life-threatening, if there are well-known methods of guarding against the hazard and if the method is affordable, it would be difficult to argue that it was not practicable to take the particular step to eliminate, isolate or minimize the hazard.

 

Recent Cases

HSE Act prosecutions regarding management of shift work and employee fatigue are rare.   But if employers need any more incentive to comply with their legal obligations under the HSE Act, they just have to consider an increase in sentencing fine levels over the past couple of years. 

Department of Labour v Hanham & Philp Contractors Ltd

In Department of Labour v Hanham & Philp Contractors Ltd[4], the sentencing process for fixing fines and reparation orders was fully reviewed by the High Court.   The Court acknowledged that sentencing is not a mathematical exercise, but found that starting points should generally be fixed for fines according to the following scale: 

Low culpability:	a fine of up to $50,000
Medium culpability:	a fine of between $50,000 and $100,000
High culpability:	a fine of between $100,000 and $175,000. ”

Cookie Time Ltd

One of the three appeals heard by the High Court in Hanham involved an employee of Cookie Time Ltd who suffered a broken arm after it became caught under a conveyor belt.  The Department of Labour prosecuted Cookietime under section 6 for failing to guard an in-running nip of the conveyor belt.  Cookie Time pleaded guilty and was sentenced in the District Court to pay a $15,000 fine, from a starting point between $20,000 and 25,000.  It also ordered to pay $5,000 in reparation to the employee, as compensation.  On appeal, the High Court increased the starting point for the fine to $100,000, being on the cusp of medium and high culpability in the scale above.  Cookie Time received discounts for pleading guilty and other matters, which resulted in a still much greater fine of $40,000. 

Mobile Refrigeration Specialists Ltd v Department of Labour

A year after this case, Mobile Refrigeration Specialists Ltd (‘MRS’) and Icepack Coolstores Ltd (‘Icepack) pleaded guilty to charges laid under the HSE Act.[5]  The facts of this case are well-known: a Tamahere coolstore exploded on 5 April 2008 fatally injuring a fireman and seriously injuring several others. 

 MRS, through its director and shareholder Mr Cook, was responsible for the installation of a dangerous hydrocarbon-based refrigerant in a coolstore operated by Icepak Coolstores Ltd.  MRS was charged under section 15 of the HSE Act for failing to take all practicable steps to ensure that no act or inaction of its employee (Mr Cook, its director) harmed any other person.  The system MRS (Mr Cook) put in place did not meet the standards required in several respects.

 Icepak faced one section 6 charge of failing to take all practicable steps to ensure the safety of its employees in relation to warning them of the nature of the refrigerant.  As a director of Icepak, Mr Grattan was charged with acquiescing in the failure of the company.  Icepack also faced two charges under section 16 of failing to take all practicable steps to ensure no hazard in the premises harmed any other person, namely, ensuring the Fire Service was aware that such a highly flammable refrigerant was being used.    

 MRS was fined $56,000 for its failures in relation in the incident, and ordered to pay reparations totalling $175,000.   Icepack was fined a total of $37,200 in relation to its failures, and Mr Grattan was personally fined $30,000.   Icepack was ordered $95,000 as reparation to the victims and their families.

 

Department of Labour v Kiwi Plastic Company Ltd

 Kiwi Plastic Company Ltd pleaded guilty this year to a charge under section 6 arising from an unaunounced, but routine, visit by Health and Safety Inspectors to the company's premises.  In the course of that visit the inspectors observed that two side sealant machines which were used in making plastic bags, had had their guards removed and alterations made to the set up of the

machines aIlowing electrical interlocks to be overridden.  The Court noted that, accepting that the "victims" were employees of the company, no harm was in fact done to them and the only effect of the offending on them was potential harm.  The Court found the appropriate starting point was

$65,000.  The company was convicted and fined $45,000.[6]

 Conclusion

Employers must always be aware the primary obligation to procure safety rests upon the employer, and whilst employees have a responsibility to themselves and others, the HSE Act makes clear that no duty imposed on any person is diminished or affected by the fact a duty is also imposed on one or more other persons.  This means that even where an employee is found to have failed to discharge their duty not to harm themselves or others, their employer does not necessarily avoid prosecution where it is proved the employer has failed to take a practicable step or steps.  The Department of Labour will not prosecute an employee where it is clear the employer did not provide the employee with the opportunity and resources to perform their job safely. 

It is clear that any system of shift work management will need to be tailored to the needs of a workplace.  Particular measures an employer should take to prevent fatigue-related errors or impairment will depend on the risk posed, including how likely errors are, how serious their consequences would be, and how available (and affordable) they are.