A Christchurch manufacturer has incurred penalties from two
different authorities under two different laws for the same
VIP Frames and Trusses Ltd (VIP) produces prefabricated
steel and wooden building frames and trusses for the construction
industry. One of its employees, Lyndon Fredericks, was
seriously injured at work when an inexperienced worker, only five
days on the job, was using a nail gun directly opposite him and
misfired, puncturing his lung and pericardium and narrowly missing
was taken to the Employment Relations Authority (ERA)
by Mr Fredericks earlier this year where he was awarded $6,000 in
compensation for humiliation, loss of dignity and injury to his
feelings on a claim for unjustified disadvantage in VIP's
failure to provide a safe workplace, and
later pleaded guilty to Worksafe New Zealand's prosecution
under the Health and Safety in Employment Act 1992 (HSEA)
for failing to take all practicable steps to ensure the safety of
employees while at work, on which the District Court required the
company to pay Mr Fredericks reparation.
The District Court decision
The Court could not find any cases where the ERA had ordered
compensation prior to an HSEA sentencing but rejected an argument
from the defence that it should not make any order of reparation
for emotional harm given that the ERA had already dealt with this
The Judge said that he must be guided by the statute he was
working under and in accordance with the principle of consistency
in the Sentencing Act, by the decisions of higher Courts. The
ERA had not been required to follow the same legislation or the
same case law in making its decision.
However, having assessed the amount of reparation due to Mr
Fredericks at $15,000, he ordered VIP to pay only $9,000, taking
into account the $6,000 that had already been awarded by the
The Court found that the accident was the product of:
an unsafe work practice - the two men had been
"cross-nailing" (working with nail guns concurrently on
opposing sides of the same frame). Although there was some
ambiguity in the material available to employers on this practice
and around how common or accepted it was, it clearly contravened
the Worksafe guidelines so was not a "minor" deviation,
the inadequate training and supervision of the new employee.
It assessed the starting point for the fine at $85,000, reduced
to $46,962.50 with discounts for reparation (15%), for VIP's
cooperation, remorse, previous good record, and steps taken since
the accident (20%), and for VIP's late guilty plea (15%).
Chapman Tripp comments
This case should not incentivise increased cases against
employers in the ERA for unjustified disadvantage where injuries
are sustained in workplace accidents.
Based on the decision in the VIP case, it appears that where the
employer also faces charges under the Health and Safety in
Employment Act, and reparation is awarded to the victim, a
deduction will be made in the reparation payable based on the
amount paid for unjustified disadvantage.
If the HSEA prosecution was known about at the time of the ERA
case, the company may well have been able to stay the disadvantage
claim (although there was more in issue before the ERA) until
determination of the HSEA prosecution.
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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The commissioner found that the worker was fit to return to his work as a driver, as recommended by the medical evidence.
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