The shocking events at Countdown in Dunedin recently have led to questions about the responsibility of employers to ensure the health and safety of their employees.
Countdown’s Keri Hannifin acknowledged that there had been a 300% increase in threats, assaults and verbal abuse directed at employees since the 2020 national lockdown, and that their employees had been “subjected to more aggression, conflict and abuse than we’ve ever experienced in our business”.
Supermarkets are now looking into additional safety measures. Countdown says that it is exploring technology such as CCTV and facial recognition, and steps such as increased security, lighting in car parks and staffing levels will also no doubt be considered.
Whilst the coverage of the incident has generally been complimentary of the way in which Countdown has supported its staff, there will inevitably be questions raised about whether it should have done more, sooner. On the one hand, the attack in this instance appears to have been random, and therefore difficult to prevent in any circumstances. But on the other, Countdown has clearly been aware of and concerned about the increasing level of violence in stores. The fact that it is saying it will look at beefing up security and protection measures also means that there were clearly steps that could have been taken, but have not been to date.
The legal obligations on employers in this context are set out in the Health and Safety at Work Act and include the requirement to take all practicable steps to ensure the safety of employees.
How far employers are required to go in fulfilling this duty was tested in Worksafe’s prosecution of the Ministry of Social Development after the fatal shooting of two employees at the Ashburton Work and Income office in 2014. Two other employees were also shot but survived their injuries.
In that case the Ministry pleaded guilty to one charge of failing to take all practicable steps to ensure the safety of employees, but disputed that it should have maintained physical barriers between clients and staff working areas.
Steps that the Ministry accepted it should have taken included ensuring adequate training in responding to an emergency incident, adopting a “zero tolerance policy”, introducing a client profiling process, and implementing effective incident investigation and incident data analysis to establish learnings and develop security managements plans.
Chief Judge of the District Court Jan-Marie Doogue noted in her decision that the events that unfolded in Ashburton had since heightened the risk of client-initiated violence and had led to many government agencies increasing their security arrangements to account for the increased risk.
However, she said that the task before the Court was to assess what security arrangements were appropriate in the workplace at the time of the event itself. The Judge said “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”.
On the facts the Court held that there was a reasonably predictable hazard of client-initiated violence involving manual assaults and assaults involving weapons, on WINZ employees, however it was not reasonably predictable at the relevant time that a lone mission-orientated gunman would attack staff. The Chief Judge also held that whilst it would not necessarily have prevented the tragedy in that case, the implementation of a physical barrier to delay violent crimes was a reasonably practicable step open to the employer
Chief Judge Doogue further noted that even where harm resulting from a hazard can not be predicted, the employer may nonetheless have an obligation to take practicable steps to address that harm. She said “An important purpose of security planning is to prepare for the moment where a general risk may manifest as a specific violent event”.
Many of the findings in the Ashburton case are equally applicable to the Countdown situation, and indeed to any retail/hospitality employer in New Zealand.
The bottom line is that violence directed at shop staff is increasing and it is a serious workplace hazard. Further, whilst particular events may not themselves be predictable, they are, unfortunately, reasonably foreseeable.
Countdown, and other employers, should review their existing practices and assess what additional protections could be put into place to minimise the risk of tragic events such as occurred in Dunedin and Ashburton happening again. Cost is unlikely to be a justification for not taking any steps that are reasonably practicable, and nor should it be when we are talking about human lives.
