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7.7.1.2 - Checklist: Employer's Duty to Employees

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Note - If a breach of s21(2) is alleged, these elements and questions must be adapted. See Employer's Duty to Employees for guidance.

Four elements the prosecution must prove beyond reasonable doubt:

1. The accused was an employer at the relevant time; and

2. There was a risk in the working environment to employee health and safety; and

3. The accused failed to take an identified measure which would have eliminated or reduced the risk; and

4. It was reasonably practicable in the circumstances to have taken that measure.

 

Accused as an Employer

1. Was the accused an employer at the relevant time?

If yes, then go to 2

If no, then the accused is not guilty of breaching the duty to employees

Risk

2. Was there a risk in the working environment to employee health and safety?

Consider – The prosecution claims that there was a risk of [relevant risk]

If yes, then go to 3

If no, then the accused is not guilty of breaching the duty to employees

Failure to eliminate or reduce risk

3. Did the accused fail to take an identified measure which would have eliminated or reduced the risk?

Consider – The prosecution argues that the accused should have [relevant measure]?

Consider - Would [relevant measure] have eliminated or reduced the risk of [relevant risk]?

If yes, then go to 4

If no, then the accused is not guilty of breaching the duty to employees

Reasonably practicable

4. Was [relevant remedial act] a reasonably practicable way of addressing [relevant risk]?

Consider – How likely was [relevant risk] to occur?

Consider – What harm would follow if [relevant risk] occurred?

Consider – What could be done to eliminate or reduce the risk?

Consider – How suitable were those options and how much would these options have cost?

Consider – What did the accused know about the risk and ways of addressing it or what should the accused have reasonably known?

If yes, then the accused is guilty of breaching the duty to employees (as long as you also answered yes to questions 1, 2 and 3)

If no, then the accused is not guilty of breaching the duty to employees

Last updated: 15 April 2016

See Also

7.7.1 – Employer’s Duty to Employees and non-Employees

7.7.1.1 – Charge: Employer’s Duty to Employees

7.7.1.3 - Charge: Employer’s Duty to Non-Employees

7.7.1.4 – Checklist: Employer’s duty to non-employees