Issue

At about 9.51am on 1 September 2014, Russell John Tully, wearing a balaclava and armed with a loaded shotgun, entered the Ashburton office of WINZ.  Mr Tully moved quickly through the office, shooting at four employees and killing two of them. 

The Ministry of Social Development (MSD) was charged by WorkSafe NZ under the Health and Safety in Employment Act 1992[1] (Act) for failing to take all practicable steps to ensure its employees would not be exposed to the hazard of violent clients. 

Summary

The District Court has found that while the event of a lone mission-oriented gunman was not a reasonably predictable hazard: 

1.   the hazard of client-initiated violence (CIV) at the Ministry of Social Development's Ashburton office (prior to 1 September 2014) was a reasonably predictable hazard; and 

2.   Physical restrictions on client access to staff working areas were reasonably practicable steps that could have been taken in response to that hazard. 

3.   the Judge concluded that a zoning model was a reasonable practicable step in response to the hazard.

These findings are relevant to service organisations in both the public and private sectors that involve face-to-face contact with the public.  Expert evidence heard and academic studies cited in the case, point to a global trend of high risk client-initiated violence (CIV) for many service industries - including jobs that require workers to handle money; carry out inspection or enforcement procedures; and provide care and services to people who are distressed, fearful, ill or incarcerated. 

Background

MSD employed approximately 10,000 workers across over 300 sites.  This included the Ashburton offices of WINZ.  Entry to the building was through automatic doors off a street entrance, and then another set of automatic doors into a reception area.  These doors were often kept open during office hours.

Under the Health and Safety in Employment Act 1992 (as under the current 2015 Act), employers have a duty of care to take all reasonably practicable steps to ensure the safety of employees while at work. Generally, the employer is required to provide and maintain for employees a safe working environment that is free from reasonably predictable hazards.

Security Risk Assessment 

A considered security risk assessment of the office, that was threat (or hazard) driven would have helped to better understand the predictable hazards and what reasonable steps could be taken to minimise the risks arising from those threats or hazards. 

All reasonably practicable steps

•       All practicable steps means all steps that could reasonably be done in order to achieve the result, having regard to a number of factors including a consideration of the nature and severity of potential harm, and the likelihood that harm may be suffered if those steps are not taken. Practicable has been interpreted in this case to mean that “if a precaution is practicable it must be taken unless, in the whole circumstances, that would be unreasonable.”  

•       The Judge ruled that a zoning model would have been the preferred as well as an effective and reasonable step in minimising the risk and harm posed by a hazard such as an armed or violent client and would have allowed staff the opportunity to quickly move to a more secure zone.

•       The court held that MSD could have implemented a zoning model, which would have included a physical barrier at the point of interaction between clients and staff.

•       A zoning model would have divided the WINZ office into zones, allowing:

•       A suitable physical barrier to delay an attacker

•       An escape route to allow employees to leave the premises quickly or to allow employees to enter a secure zone to which an attacker would not have access

•       Ensure sightlines are maintained for staff and security to client interactions

•       Ensure these measures apply to receptionists, interview rooms and other staff work areas

 A reasonably predictable hazard

•   The court considered whether a hazard existed, and found in light of the work carried out by MSD and recent incidents, client-initiated violence was a reasonably predictable hazard faced by MSD’s employees. There had been a number of incidents involving violence, with many involving weapons (but not firearms), at various MSD locations since 2009.

Cost considerations

The judge concluded that for a step to not be reasonably practicable because of cost factors, the cost must be “grossly disproportionate” to the risk of harm that might result from the hazard.  

The judge also concluded that given the severity of the potential harm, the potential risk, and MSD’s large operating budget, the costs associated with establishing the zoning model nationwide would not be grossly disproportionate to the risk posed by violent clients.

Conclusion

All organisations in both the public and private sectors should consider the implications of these findings when considering the security and safety risks as well as the duty of care to their employees, clients and visitors.  A considered, threat driven, and risk based approach to risks is the best-practice way of demonstrating that duty of care by:

o   Understanding the nature and extent of reasonably predictable hazards in the workplace and the risks they pose and,

o   Providing reasonably practicable steps to minimising those risks.

Organisations providing client services, particularly where there is the potential risk of client-initiated violence, should review their places of work against the findings and recommendations of this case.

[1] The Health and Safety in Employment Act 1992 was replaced with the health and Safety at Work Act 2015 on 1 Apr 2016.  The case was determined under the 1992 Act although it should be noted that the requirements of the 2015 Act are broadly similar to those of the 1992 Act.