Unreasonable omission by WorkSafe to adequately consider hazard mitigation for serious incident

Excerpt

In 2016, a very serious incident occurred at an early childhood learning centre when a young child choked on a piece of sliced raw apple. The child suffered a cardiac arrest resulting in a brain injury that has left them with a severe lifelong disability.

WorkSafe investigated this incident and produced a report in 2017 concluding that no compliance action would be taken, as it did not identify any breaches of the Health and Safety at Work Act 2015 (HSAW). The family were advised accordingly.

The Ministry of Education (MoE) also investigated this incident and concluded that the requirements under the Education (Early Childhood Services) Regulations 2008 had been met by the early childhood learning service.

In 2017, the family complained to WorkSafe about its investigation, raising concerns about the accuracy of the report and whether all relevant factors were considered.

In response, WorkSafe highlighted that its investigation focused on what occurred, prevention and compliance with the HSAW Act. (WorkSafe subsequently advised the Ombudsman that investigation reports assist with decisions about any prosecution.) Otherwise, WorkSafe stated that the concerns raised by the family were outside the scope of its investigation and their complaint was best considered by the MoE.

WorkSafe advised that it would transfer the complaint to the MoE and contact the Ministry of Health.[1] However, WorkSafe did not transfer the family’s complaint to the MoE until a year later, in 2018. At that stage, the complaint was handled at the local office level and it was decided that no action by the MoE was necessary.

Following a further complaint on behalf of the family to WorkSafe in 2019, the MoE undertook a review that resulted in the introduction of a number of changes to the licensing criteria for centre-based early childhood education (ECE) services.[2] For example, food preparation guidelines were to be amended to require early learning services to alter the texture of raw apple before it is served to children under the age of five.

The family remained dissatisfied about how the entire incident had been handled and complained to the Ombudsman about WorkSafe.

Footnotes

[1] The Ministry of Health has an advisory role in relation to the development of relevant guidelines, and is the lead agency for regulatory reform. Return to text

[2] The Education (Early Childhood Services) Regulations 2008 (Regulations) set out the regulatory standards and the process in which early learning services become licensed. The licensing criteria for centre-based education and care services 2008 sets out the day-to-day standards which services must follow to retain their licence, and are used to assess compliance with the minimum standards set out in the Regulations. Return to text