WorkSafe’s confused approach to prosecution results in lawyers tackling cases ‘inadequately’ – review

According to a review ordered by Crown Law, WorkSafe takes a confused approach to prosecution that risks its legal team receiving cases “late and under-prepared”.

Respondents described investigative resources at times as “regrettable” and shortages as “chronic.”

There wasn’t a long list of recommendations. Instead, the investigation, commissioned by Crown Law from lawyer James Carruthers, said WorkSafe should “seriously consider how it could improve its law enforcement function”.

The Crown’s safety watchdog has been under pressure for years over the country’s persistently high workplace death and injury rates.

Most prosecutions are successful, but critics say the company does too little, aims too low, and rarely takes action against company executives.

The agency had already been working to improve law enforcement before another independent report four years ago found a series of deficiencies.

“Overall, that’s my impression [the investigation unit] has a tough assignment,” Carruthers wrote in the new report.

“Once matters need to be investigated have been identified, there is only a short window of opportunity to carry out the sometimes complex investigations.

“This must be done with fewer – and less experienced – investigators than before, with defense lawyers fighting ever harder for their clients’ interests, and with only ad hoc input from the legal department.”

“No doubt, that’s why an investigator said [it] copes very well with what it has.”

WorkSafe has sought to expand its regulatory authority this year while making deep back-office cuts of about 120 jobs in other areas.

“That was the feedback [it] has lost many investigators in recent years, both experienced investigators who had a real feel for health and safety investigations and relatively new recruits,” the new 46-page report says.

“One lawyer even went so far as to say the team had effectively been ‘decimated’.”

WorkSafe’s restructuring dragged on for years, sparked a series of personal grievances, and remained incomplete when the interim chief executive recently resigned.

It has previously defended its prosecutions on the grounds that they adhere to the principles that there must be a fair chance of success and that they are in the public interest.

“As one defense lawyer noted, WorkSafe’s conviction rate – with most convictions following guilty pleas – speaks for itself,” says Crown Law’s new report.

However, it said: “There appears to be a degree of confusion and uncertainty about WorkSafe’s enforcement roles, priorities and objectives, resulting in too many cases coming to light,” investigators said.

Some defense lawyers said: “WorkSafe’s charging decisions are inconsistent and sometimes inexplicable.”

They are now taking measures to return to their core mission in health and safety, said Carruthers.

A recent report from an economic forum confirmed this.

“Lawyers we interviewed who act for employers admitted they are puzzled by serious claims cases that WorkSafe NZ has decided to give the employer the opportunity to remedy internally, despite obvious failings and breaches of regulations,” it says.

“The perceived inconsistency about what WorkSafe NZ does and does not prosecute risks undermining the credibility of the central regulator.”

Carruthers said he heard that WorkSafe had become too busy with the work and was not prioritizing cases rigorously enough, leading to quality and speed problems in what was likely to be a “severely underfunded” investigative unit.

This in turn meant that lawyers too often received files too late, the files were “insufficient,” or both.

The legal team “may advise whether charges should be brought under significant time pressure and in the absence of information that they should have.”

Statements from key witnesses may be missing from the files, or investigators may lack time to speak with experts or proposed defendants.

Often the cases were complex and WorkSafe only had a year to bring charges, as opposed to two years in Australia.

The review found that defense lawyers also appeared to be pushing back more on the investigation, which could “hinder” progress.

Many attorneys believed that the legal department would be more efficient and effective if it were involved earlier in the investigation, the review said.

The corrections include WorkSafe introducing a new regulatory strategy “that links its law enforcement function to its core role as a health and safety regulator”.

It had also tightened triage.

“It has adjusted its policy on when prosecution is in the public interest to include more discretion,” the new report says.

It had set up a stop between investigators and lawyers to assess how good an investigative file was – this “reduces the likelihood of the legal team being caught off guard”.

The report also states that WorkSafe was “broadly on track in terms of what went wrong and how serious it was, but was able to diversify its billing portfolio to include more near miss cases and more cases against it.” edit.” [company] “Officers”, such as managers and directors.

A WorkSafe spokesman said the regulator had accepted the findings.

“We were pleased that the reviewer identified our legal team as one of the best in law enforcement for their expertise and sound judgment. He also concluded that WorkSafe largely has the framework, precedents and processes necessary to conduct thorough investigations and produce evidential findings and well-reasoned charging decisions.

“The reviewer confirmed that WorkSafe is already taking steps to address the issues it identified. This includes implementing a clear strategy to ensure we focus our efforts, including law enforcement, on the sectors and risks where the greatest harm occurs.”

The spokesman said WorkSafe would take the review findings into account as it continues to “implement our new strategy and priority plans”.