Most Read Contributor in New Zealand, November 2016
It's one of those things you hope never happens – but
in the unfortunate event of a workplace accident – what
should you do?
Naturally your first priority is to look after the injured
person and notify management. Try to interfere with the scene of
the incident as little as possible, except to the extent necessary
to save life, prevent harm or relieve the suffering of any other
Once any injuries have been treated and the area has been made
safe, consider whether serious harm has occurred (this term is
defined in the HSE Act). If it has, you must notify the Ministry of
Business Innovation and Employment (MBIE) that an accident has
occurred. You should also contact your insurance broker and record
the incident in the company's accident register.
If the incident has resulted in serious harm, the Ministry will
appoint an investigator to consider the surrounding circumstances
and he or she is likely to visit the scene. It is important to get
legal advice as early as possible during this stage; often people
are in a state of shock and are feeling emotional about what's
happened. It can sometimes be difficult to immediately identify the
cause of an incident and statements made during these early stages
may not always be accurate. Legal advisors will ensure that any
statements made during this time (formal or informal) will not give
rise to any prejudice later on.
The company should also conduct its own investigation to
determine the cause of the incident. This can be done internally or
by appointing an external health and safety consultant.
The role of the Ministry's investigator is to determine the
cause of the incident, and to decide whether or not there has been
a breach of the HSE Act. The investigator may request copies of any
information such as company policies and manuals, take photographs,
measurements, sketches or recordings to help determine the cause of
the incident. An incident report will then be compiled and the
investigator will recommend whether charges should be laid, or
whether a prohibition order should be issued. Any charges must be
laid within six months of the incident.
The report will be made available to the company and to any
person who has suffered harm as a result of the incident. The
requirements of both the Official Information Act 1982 and the
Privacy Act 1993 will apply to the incident report.
During the process, the investigator will want to interview a
representative of the company and any available witnesses to the
incident. A company representative must be available to answer
questions, but no employees or other witnesses are required to give
a statement. Anyone who chooses to do so is entitled to have legal
representation. Often interviews which are carried out as part of
an investigation will be conducted under caution. This means that
any evidence may be used against the company (or, in some cases,
the individual) in Court. Even if the interview is not conducted
under caution, it may still form part of the evidence. For this
reason, anyone being interviewed should have legal
The investigator will not treat anyone differently if they
choose to have legal representation and it will not prejudice the
process in any way. It is still possible to co-operate fully with
the investigation, while also receiving legal advice.
In cases of serious harm, companies should consider offering EAP
(Employee Assistance Programme) services to the victim, their
family and affected employees. Where employees are unable to work,
companies should consider topping up ACC payments and provide
financial assistance to family where appropriate.
Undertaking these steps will not eliminate the risk of
prosecution but will assist employees to remain at, or return to
work and may be taken into account by the Court if charges are
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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3.Courts are imposing larger fines and compensation for non-economic loss for contraventions of the Fair Work Act.
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