Since the roll out of the traffic light system, workers all over the motu have been abused and even physically threatened by people who have been turned away from accessing businesses. In retail and hospitality, in particular, there have been multiple reported incidences of people behaving appallingly towards often young, inexperienced staff.
We have reached a point where client initiated violence and abuse is now a foreseeable hazard in these types of workplace, which raises issues as to what obligations employers have to keep their staff safe.
The primary duty on employers is to take all reasonably practicable steps to ensure that their employees are not exposed to risk at work, including the risk of both mental and physical harm This creates an obligation to assess all of the potential hazards within the business and then take such steps as are reasonable to eliminate the risk where possible, or where this is not possible, to minimise the risk.
What is reasonable in each case will depend on how likely the risk is to occur and how severe the harm is that might result. The greater the potential harm, the greater the action required. The cost associated with eliminating or minimising risks is a relevant factor in assessing what is a reasonable control measure, but cost can only be used as a reason not to do something when it is grossly disproportionate to the risk.
Employers in high risk sectors therefore need to urgently consider what security arrangements they should put into place to safeguard their staff. Taking the approach of let’s “ride it out” because the cost of additional security measures is too high, will not be acceptable. In this regard employers must be assumed to be aware of the increased risk that exists in this current environment, and therefore they have an obligation to do something about it.
Measures that could considered include reorganising the layout of the premises to put a barrier between customers and staff, hiring security staff to check CVCs, ensuring staff are adequately trained in how to deal with difficult people and what their response should be in a conflict situation, implementing an emergency management plan and alarm system, adopting and communicating to both staff and customers a zero tolerance approach to verbal and physical violence, investigating any incidences which do occur and reviewing what additional steps could have been taken to reduce the likelihood of them, seeking feedback from employees as to their comfort levels with the security measures being taken and what other ideas they have, and conducting regular reviews of the effectiveness of these systems.
If an serious incident does occur an employer will need to satisfy Worksafe that they properly considered whether it was reasonably practicable to take these types of steps to reduce the level of risk. If they are found to have failed to comply with a duty that exposes an individual to a risk of serious injury, serious illness or death, they could be subject to a fine of up to $1.5 million.
Unfortunately it is not inconceivable that workers could suffer serious injury or even death as a result of a “vaccination-rage” incident. We have seen recent examples of this type of event at a Countdown Supermarket in Dunedin this year, and at an Ashburton WINZ office a few years back.
The WINZ office tragedy led to a Worksafe prosecution which resulted in a finding that the employer had not taken all reasonably practicable steps to safeguard its employees, and in particular it could have erected physical barriers to ensure there was no unrestricted access by clients to the staff working area.
In the District Court’s judgment in that case, Chief Judge Jan- Marie Doogue said that “It is crucial to avoid applying the benefit of hindsight. We know now that employees did in fact face a lethal hazard. However, the appropriate question in this case is to determine whether the hazard of client-initiated violence was reasonably predictable, and if so, whether the defendant took all practicable steps to address that hazard, given the knowledge available prior to the incident”.
We now do have the benefit of hindsight, to the extent that we know that employees in some customer facing roles are potentially at risk of serious harm, and this risk has significantly escalated given the new requirements imposed under the traffic light system.
Imposing additional compliance costs on businesses which have already struggled through Covid restrictions is an unfortunate but necessary measure in the current environment. The better, but optimistic solution, would be that people who have made personal choices accept the consequences of those decisions and stop bullying workers who are just trying to earn a modest wage by serving others.