Lessons from the Ashburton WINZ shootings

Chief Judge Doogue’s decision in WorkSafe New Zealand v Ministry of Social Development [2016] NZDC 12806 addresses an horrific workplace shooting in an open plan office setting that will seem familiar to many New Zealanders. It also demonstrates that employers are expected to consider any latent potential for workplace violence.

Lessons From The Ashburton

On 1 September 2014, a dissatisfied client entered Work and Income New Zealand’s (WINZ) Ashburton office armed with a gun. He shot and killed two WINZ employees, wounded one and narrowly missed another. The shooter was subsequently apprehended and convicted of murder (R v Tully [2016] NZHC 1133).

WINZ was a division of the Ministry of Social Development (MSD), and following the shootings MSD was charged with failing to take all practicable steps to ensure that its employees would not be exposed to the hazard of violent clients (under the Health and Safety in Employment Act 1992).

WorkSafe alleged six practicable steps that MSD should have taken, which are set out in an appendix to the judgment and labelled (a) to (f). MSD pleaded guilty to practicable steps (b) to (f), which related to training, policies and processes, but disputed practicable step (a).

The disputed “practicable step (a)”

“Practicable step (a)” was described as: “Ensuring that there was no physically unrestricted access by clients to the staff working area”. The Court identified the step’s core element as some form of physical barrier between employees and clients, to delay the advance of a violent client.

Following Judge Morris’s framework in WorkSafe New Zealand Ltd v Waimea Sawmillers Ltd [2015] NZDC 21082 (at para [85]), the Court carried out a two-stage assessment to decide whether practicable step (a) was a step that MSD should have taken to ensure the safety of its employees:

• Was there a reasonably predictable hazard?

• If so, was practicable step (a) a practicable

step that MSD was required to take?

Reasonably predictable hazard

The Court found that a shooting incident was not reasonably predictable at the time the WINZ shooting occurred. The absence of any similar prior incidents in New Zealand was an important part of this finding.

Instead of focusing on gun violence, the Court found a more general predictable hazard of client-initiated violence including manual assault or use of a weapon other than a firearm. This hazard is quite different to the shooting incident which actually occurred (see also Waimea Sawmillers Limited v WorkSafe New Zealand Limited [2016] NZHC 915 at paras [38]-[39]).

In identifying this hazard, the Court referred to an “objective body of knowledge” that MSD knew, or should have known. The body of knowledge included analysis of MSD’s own records, theoretical research and empirical studies, presented to the Court by security experts.

While the 1992 Act holds employers to an objective standard of knowledge, the Court’s apparent reliance on security experts seems to extend this standard beyond what a reasonable employer would know. This knowledge extension is debatable, as it appears inconsistent with the High Court’s approach in Waimea Sawmilling (at para [37]).

Having found a predictable hazard, the Court proceeded to the second stage of its assessment – was there a practicable step?

Practicable step

The Court considered whether there was a practicable step in the circumstances by weighing the “quantum of risk” generated by the hazard, against the practicability of addressing it, and having regard to the factors set out in section 2A(1) of the 1992 Act.

(a) The nature and severity of the harm that may be suffered if the result is not achieved

The Court found that client-initiated violence could result in injury or death in the absence of firearms. It noted the fatal stabbing of an Accident Compensation Corporation employee in 1999 as an example.

(b)–(c) The current state of knowledge about the likelihood that harm of that nature will be suffered if the result is not achieved, and the current state of knowledge of harm of that nature

The Court also found that several factors made the threat of client-initiated violence more than negligible. These included a security report MSD commissioned in 2012 identifying client-initiated violence as “the most serious and likely physical threat” it faced nationally, and supporting data from MSD’s own incident reporting database including incidents of threatened violence in WINZ’s Ashburton office.

The likelihood of the harm (more than negligible), weighed together with the severity of the harm (serious injury or death), produced a significant “quantum of risk” against which practicable step (a) fell to be considered.

(d) The current state of knowledge about the means available to achieve the result, and about the likely efficacy of each of those means

The Court devoted one quarter of its written judgment to expert evidence about practicable step (a). The lengthy discussion seems to reflect WorkSafe’s loose description of the step, and the Court’s determination that it involved some form of physical barrier. Compounding this difficulty, the Court was uncomfortable with the physical barriers proposed by WorkSafe’s experts. WorkSafe’s security experts provided conflicting evidence about what sort of physical barrier would be appropriate. One proposed an external barrier at the office entrance, while the other proposed an internal barrier between the reception and the workplace.

The Court found that these barriers would rarely be effective as they would not prevent violence at the point of client-employee contact. It also noted that the barriers could create collateral security problems at the barrier, and may themselves agitate clients and become a cause of clientinitiated violence (as suggested by MSD’s expert).

Despite evidence from MSD’s expert that no physical barrier was necessary, and against the conflicting proposals from WorkSafe’s experts, the Court synthesised from the available expert evidence an aesthetic “zoning model”. The Court did not consider it helpful or appropriate for the Court to set out the design, but found that it would have involved some form of physical barrier to delay a client who was attempting to assault an employee.

Having crafted a practicable step which MSD could have taken, the Court moved on to consider its cost.

(e) The availability and cost of the means

The Court held that in order for the cost of its practicable step (a) to outweigh the risk of harm, the cost must be “grossly disproportionate” (and noted that the 2015 Act codifies this position).

MSD estimated that the Court’s zoning model would cost between $50,000 to $180,000 per site, and between $13.1 million and $27.3 million nationally. The Court found that these costs were well within the realms of practicability as they had to be seen in the context of MSD’s $400m annual operating budget. Perhaps surprisingly, the Court may have looked at the cost of the practical step differently if MSD were significantly smaller, or had significantly less resources.

What should employers consider?

The WorkSafe v MSD decision suggests that employers should identify any interactions by employees with customers that might plausibly spark physical violence, and consider how best to address the potential violence. In considering this issue, they will be expected to have access to an objective (perhaps expert) body of knowledge about security threats, including analysis of their own incident records and any relevant local or international research.

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