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 person.
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 representation.
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 laid.
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.