Employment and health and safety

The large, diverse and highly skilled workforce is a defining feature of the health sector - and its greatest asset. We work in all aspects of employment relations in the health sector.

Claro’s lawyers routinely advise on competence and health concerns, practice reviews, performance management, supervision responsibilities and vicarious liability of employers. We have been involved in disciplinary processes, including investigations of serious misconduct, personal grievances, and responsibilities under collective agreements.

Health and safety obligations are necessarily demanding and the consequences of failure can be severe. Our lawyers assist clients to understand their obligations to manage hazards in the workplace and support clients during investigations. We have defended both public and private organisations facing prosecution under the Health and Safety in Employment Act.

When it comes to employment and health and safety:

  • good decisions rest on sound process, which will be carefully scrutinised
  • obligations vary, but no one can ignore an identified risk in the workplace.
We work with the following groups in relation to employment and health and safety:

Examples of work done by Claro lawyers

Health and Safety at Work Act. Advising DHBs and other health providers on the implication of this legislation to the management of hospitals; including on such issues as which hospital managers will be ‘PCBUs’; the extent to which DHBs are responsible for health and safety issues arising in providers funded by the DHB; and when injuries caused by treatment require notification to WorkSafe.

Clinical practice investigation into competence concerns about a senior doctor employed by a DHB. We advised the DHB on the appropriate process to enquire into the concerns, including ensuring the investigation met requirements as set out in the Senior Medical Officers’ collective employment agreement, and good employment law processes generally. The investigation was complicated by the fact that the senior doctor had recently been credentialed as part of the DHB’s credentialing process, but this had not adequately managed the significant concerns held about the doctor’s practice. The outcome of the investigation was that areas of significant concern were found and the doctor was stopped from practising in these areas – but was considered safe and competent to continue to practise in other areas. The DHB liaised with the Medical Council throughout.

Disciplinary investigation in a residential care facility into allegations of abuse by a staff member. Previous allegations had resulted in disciplinary action and a subsequent personal grievance. We worked closely with the facility to address the personal grievance and ensure that subsequent investigations were carried out in a robust and procedurally fair manner.

Resolution of employment relationship problems and personal grievances. We advise health sector employers on the management of issues relating to employees’ health, competence and conduct; bullying and stress; breakdowns in the relationship between employers and employees; and personal grievances. We attend mediations and, if necessary, represent clients before the Employment Relations Authority or courts.

Competence, health and conduct issues that affect the safety of an employee’s services. We regularly advise public and private sector providers on their obligations to act where concerns are identified about the safety of services; including the process to follow and notification obligations to the relevant regulatory authority, and to other hospitals or facilities where the employee works.

Drafting and amending documentation for specialist medical recruitment specialists. We have advised medical recruitment specialists on their terms and conditions of business, locum request forms, locum placement forms, independent contractor templates for locums and supervision agreements.

Health and Safety in Employment Act investigations and prosecutions. We have acted for both public and private sector organisations facing investigations and prosecutions relating to breaches of the Health and Safety in Employment Act. We have advised organisations and boards on their obligations under the legislation and the need to comply with guidelines such as the Institute of Directors guide Good Governance Practices Guideline for Managing Health and Safety Risks. We have advised public and private health providers on when patient falls and injuries resulting from clinical incidents require reporting under the Health and Safety in Employment Act.

Credentialing of health professionals. The obligations on employers of health professionals to ‘credential’ their employees have increased significantly over the last decade. No longer is it acceptable merely to check that the employee has a current practising certificate or for a quick reference check to be undertaken. There are increasingly clear requirements for credentialing all health professionals, in both the public and private sector, both before employment and on a continuing basis. We have been involved in all aspects of the credentialing process; including acting in cases where there is the difficult interface between credentialing and managing poor performance. Our lawyers were involved in the Dr Hasil case at Whanganui DHB – the Health and Disability Commissioner’s report into that case remains a leading guide to what is required when credentialing senior doctors. The case can be accessed here.

Life preserving services during industrial action. The Employment Relations Act includes a process for unions and employers to follow to ensure that ‘life preserving services’ continue to be provided by striking employees during health sector strikes. The process involves attempts to reach agreement followed by clinical adjudication. Disputes between employers and unions have resulted in proceedings being brought in the Employment Relations Authority. Our lawyers have also advised on the legal liability of health professionals who provide services during industrial action that are outside the scope of what they would ordinarily provide.

Advice on employment related policies and guidelines, including on policies intended to apply to employees who work in both Australia and New Zealand.

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