UC investigates fines against employers

A team of University of Canterbury researchers is investigating the size of sentencing fines in the cases against employers of injured or killed workers.

The ultimate goal of health and safety in employment legislation is to prevent employment-related accidents by financially punishing employers of injured or killed workers, UC economics and finance researcher Dr Andrea Menclova said.

In December 2008, the Department of Labour - now the Ministry of Business, Innovation and Employment (MOBIE) - took an appeal to the High Court for three cases.

They argued that the fines imposed by the District Court were inadequate and did not reflect the five-fold increase in the maximum fine that Parliament had written into the legislation.

“Our research indicates that the cases used in the appeal were largely representative of District Court health and safety in employment sentencing of that time and that the then Department of Labour had been trying to create a precedent for large increases in fines in HSE sentencing in general.

“Following the High Court appeal, the average level of fines indeed increased substantially and employer’s culpability became a key determinant. In particular, our empirical research indicates that the average fine has risen from $13,000 to $33,000 and while medium to high culpability increased fines by about $20,000 prior to the appeal, it now increases them by over $30,000.

“The degree of harm suffered by the employee is not nearly as significant when determining the level of fines but continues to be very important when determining reparations. For example, an employee’s death does not seem to affect the level of fines but it increases reparations by about $20,000.

“Interestingly, however, the mean level of reparations has not increased as much as fines following the appeal and even the penalty for fatal harm has remained relatively constant (or possibly even decreased slightly), mitigating the impact of the legislation on total financial liability (fines and reparations combined).

“In addition, employers continue to receive sizeable discounts for financial limitations and these have increased over time. Prior to the appeal, an employer’s financial limitations reduced total financial liability by around $12,000 and this has now risen to $19,000. It will be interesting to see whether the Department of Labour considers the new sentencing practice adequate or whether further increases in HSE fines will be called for.”

The UC research team, including Alan Woodfield, Stephen Hickson and Dr Menclova, has manually coded 2438 health and safety charges from March 1994 to April 2012. Recent cases are still being added. The raw data comes from a comprehensive (MOBIE) database of successful prosecutions and is based on documents produced directly at court (case decisions, sentencing notes, returns on prosecutions and summaries of facts).

For each case, they have coded information on: degree of employer’s culpability, degree of harm resulting, employer’s safety record, the presence of employer’s financial limitations, remorse, cooperation with the authorities, remedial action, guilty plea, the need for general and particular deterrence (as viewed by the judge), employer size, the presence of voluntary payment by the employer, attendance at a restorative justice conference, employee culpability, and the number of victims and related defendants.

Christchurch lawyer Nigel Hampton QC said the research was fascinating and very useful.

“I can see it being cited, both by prosecuting and defence lawyers, during argument/submissions as to size of fine and of reparations in health and safety employment prosecutions.

“And it may well result in MOBIE calling for an upping of the sentencing tariff generally, again and seeking amendments to the sentencing limits in the health and safety in employment legislation, by further raising the maximum financial penalties able to be imposed.

“All in all, this UC research is a very useful piece of work. It will be helpful for both lawyers and judges as a sentencing tool,” he said.