The Court of Appeal has overturned a High Court decision to reaffirm the powers of the labour inspectorate and the obligations on employers to cooperate in the conduct of investigations under the Health and Safety in Employment Act 1992 (HSEA).
The clarification is timely given that the HSEA is soon to be substantially strengthened as part of the Government's response to the Pike River tragedy.
In March 2011, a farmhand was killed when the tractor he was driving tipped and crushed him. The labour inspector responsible for investigating the accident, Ms Utumapu, wanted to question two of the company's directors – a Mr Speedy and a Mr Bull.
They insisted upon being told in advance the matters she wanted to cover. She said that, as the investigation was of a criminal nature, she was not obliged to provide this information but gave them an idea of what her general question line would be.
They still declined to cooperate, saying that the notification from the Ministry of Business, Innovation and Employment (MBIE) was insufficient and that considerably more detail was required.
MBIE then formally required them to attend an interview under section 31(1)(f) of the HSEA and advised them they had a statutory duty to assist under section 47 of the Act. Failure to comply may be an offence under sections 47, 48 and 50.
Again, they refused to comply. They then filed an application in the High Court for judicial review of the inspector's actions, alleging that she was acting unlawfully by requiring them to submit to an interview.
The High Court
The High Court found in favour of the Directors and MBIE appealed.
Allowing the appeal1, the Court of Appeal noted:
- the directors should have agreed to the interview and answered the inspector's questions, or declined to do so with the risk of criminal sanctions for failing to comply
- if they had answered the questions and charges had been laid, they could later have challenged the admissibility of the evidence at or before trial
- section 31(6) expressly excuses an interviewee from giving any answer or information that may incriminate him or her
- an inspector can stipulate the persons within an organisation who will be interviewed or asked to provide statements
- an inspector is not bound to provide the interviewee with a broad indication of the purpose of the interview and the type of allegations which might be made.
The court ordered the directors to participate in an interview and to answer questions, subject to their privilege against self-incrimination.
Our thanks to Heather McKenzie for writing this Brief Counsel.
1Utumapu v Bull and Speedy COA CA554/2011 [23 May 2013]
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.