• Rachael
    98
    "Not impairment AGAIN" I hear you groan... and it's not.
    Well not in the usual vein this question heads anyway... Let me explain.

    Once upon a time there was a bloke called Bob.
    Bob has a company vehicle.
    The company vehicle usage agreement includes personal use.
    The company vehicle has E-Roads and it is well known throughout the workforce that E-Roads is monitored on a very regular basis.

    During the course of this routine monitoring a mistake is made in a search request and it is accidentally discovered that Bobs company vehicle is regularly out and about until 3am.
    Which is fine, except that Bob starts work at 6am.

    (see where I'm going with this?)

    Now lets also assume that the company is doing the right thing and approaching Bob about his wellbeing and having those dicsussions with him etc etc so this is not a 'do the right thing' question.

    In most cases we dont know if fatigue, drugs or alcohol or stress are a contributing factor until after an event.

    But in this case we know for sure that Bob is getting less than 3 hours of sleep a night, so it is highly likely that fatigue is likely to be impacting on his work environment. As a responsible PCBU we.have to address the risks we know about.

    My question is
    What counts as something an employer is reasonably expected to know? And in this case we've got Prvacy vs Employment vs Health and Safety.

    Legally, where do we stand?
  • Stuart Oakey
    27
    But in this case we know for sure that Bob is getting less than 3 hours of sleep a night, so it is highly likely that fatigue is likely to be impacting on his work environment. As a responsible PCBU we.have to address the risks we know about.Rachael

    Hi Rachael, what you know for sure is that the vehicle is out at 3am. Does Bob go to bed early because he gets up early to go to the gym? Does Bob's wife/partner go out at 3am? Does one of the kids take the car?
    You could ask Bob if he knows that his car is being used at 3am and go from there.
  • Rachael
    98


    Hi Rachael, what you know for sure is that the vehicle is out at 3amStuart Oakey

    Thanks Stuart, but E-Roads is pretty detailed so we know when, where and what speed, how many Ks, how many times the brakes were used sharply etc etc.

    So we know the vehicle gets to Bobs house at 6pm ish after work, then leaves Bobs house at 9pm ish and after visiting several locations - some are more than 90 minutes apart - it only gets back to Bobs house at 3am.

    We also know (through more than one source), that Bob is the driver.

    So if he's sleeping 3 hours from the time he gets home from work and another 3 when he gets home from his err, lets call it 'night shift' that's still only 6 very broken hours.
  • Steve H
    202
    The company vehicle has E-Roads and it is well known throughout the workforce that E-Roads is monitored on a very regular basis.Rachael

    Does Bob know that, has he acknowledged that he knows the vehicle he drives is being (or may be) monitored? Is there a sign in the vehicle that informs the driver (and passengers) it's movements are being tracked?

    Assuming the answers to informed consent are yes, why not have an informal meeting to ask for an explanation. Are the locations always the same?

    I had a collection truck once that with one driver would only get one collection run completed a day, previous owner/driver could get 3 done, as could a backup driver. Put a GPS tracker into the truck and found that the problem driver was using it to do his egg round on the side.
  • Rachael
    98


    Hi Steve - thanks and an actual lol at the egg round :)

    The short answer is yes and yes. Yes he knows its monitored and yes the consent is a part of the deal when Bob accepted the vehicle.

    The discussion between different facets of the business is divided between:
    a) we go down the 'please explain path' for out of hours activities that are technically none of our business and get in trouble from a privacy and employment angle or
    b) we pretend we've minded our own business, something serious occurs then we have to either lie about whether we knew fatigue could have been a factor or
    c) we have to say we knew it could be a factor but then admit we did nothing to address it because it was outside the scope of work.

    (remnder - the 'are you okay?' questions are being asked. This is not a 'do the right thing' question)

    Hence the question: what are the PCBU reasonably expected to know?
  • Steve H
    202
    The short answer is yes and yes. Yes he knows its monitored and yes the consent is a part of the deal when Bob accepted the vehicle.Rachael

    So no issue that as a part of normal checks and balances his employer has become aware of the company wagon being out and about at odd/regular times during the night. Therefor an informal chat/heads up, along the lines of "hey Bob, some random checks of your company car have shown that it's out and about at odd times during the night, is that something we should be concerned about?" is a fair and reasonable question.

    Without knowing whether there is a pattern of the same addresses night after night, or a variety of different addresses and times, you are guessing what the reason maybe, but the times are revealing a potential safety issue simply from the driving while fatigued perspective. And that is quite apart from any H&S issues arising from working while fatigued.

    Once you have had the conversation with Bob, you will be able to add the "why" to "when, where and for how long", but so long as you don't prejudge the situation and establish the facts, you can proceed accordingly (and inline with your employment contracts/procedures).

    In my egg round truck driver, I solved the problem by figuring out his route/time table, then i appeared at one of his drop off points just after he got out of the back of the truck with some trays of eggs. He was suitably shocked, didn't drop his eggs though.

    As the truck was supplied to us under contract from it's owner, I just said, we'll hire the bare truck from here on in and find our own driver. We then told the drivers about the GPS system, and upgraded it so we could message them and they us- whole thing worked so much more smoothly after that.
  • SafetylawyerNZ
    83
    Hi Rachael

    From a health and safety perspective, the answer seems pretty simple to me. Once you know about Bob's late night activities and potential fatigue, your organisation has no choice but to deal with it.

    Section 22 of the Health and Safety at Work Act defines the term "reasonably practicable". Relevantly, it requires PBUs to do "that which is, or was , at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including....(c) what the [PCBU] concerned knows, or ought reasonably to know, about the hazard or risk".

    Fatigue is an obvious hazard, and the risk you have identified (even if inadvertently) is that Bob may be fatigued when he works because he is regularly not getting enough sleep. This means you need to consider - and do - whatever can reasonably be done to ensure health and safety for Bob and people who may come into contact with him while he works.

    I often finds it helpful to turn the question around, so let's take a hypothetical situation. If Bob is involved in a serious traffic incident tomorrow, and WorkSafe and the Police investigate, they will likely ask to see the E-Roads data from his vehicle for the day and, potentially, a period like perhaps 1-3 months before, the incident. How comfortable are you that you can answer questions from them about Bob, and about what your organisation did to manage the risk of him working while fatigued? My guess is "not very", and that if WorkSafe or the Police ask why the organisation allowed Bob to work knowing he regularly had only three hours sleep, especially if he only had three hours sleep the night before my hypothetical accident, then you will struggle to persuade either regulator that your organisation did all that was reasonably practicable.

    I should add, for completeness, that Bob's sleep pattern may not be a concern. Some people naturally sleep less than others, and others sleep a little during the week but catch up at the weekend without it having a material affect on their performance. These are issues you could usefully explore with Bob. Does E-Roads show any "red flag' issues about his driving and work performance?

    I appreciate that initiating the discussion with Bob may be awkward, and that employment or privacy issues may arise. Others have made some good suggestions about that, and if in doubt I suggest you get some legal advice so the organisation follows due process and doesn't get itself in trouble. I don't work in those fields so don't know the answer.

    Ultimately, you need to think about what your organisation can do to protect Bob from the risk of fatigue. Can support be offered to help him make better sleep choices (it sounds like that's what you're currently considering)? Can his shifts start later so he can sleep longer into the morning? Can a process be agreed with Bob so that if he has a late night he notifies a manager and doesn't come to work? Others smarter than me will have more ideas on this front.

    Good luck!
  • Steve H
    202
    I suggest you get some legal advice so the organisation follows due process and doesn't get itself in trouble.SafetylawyerNZ

    That is key advice whenever you are dealing with any employment matter, and to treat all employees equally. So in this case, last month Fred got pinged via E-Road data, but Fred's a great guy and we turned a blind eye to his activities but that Bob, boy we've been hanging out for any excuse to outsource that pointed object.
  • Michael Wilson
    111
    I would refer to your vehicle policy that "Bob" signed and agreed to.
    If this did not occur and you are relying on "everyone knows" then it gets a bit murkier.
  • Rowly Brown
    48
    When you're having the "conversation" with Bob you might include re-appraising him of his personal responsibility for maintaining his own wellbeing (see S 45 of the HSAW Act) if it appears his practices likely to impact on his performance of his work duties are less than optimal.
  • Trudy Downes
    50
    Poor Bob. If I am reading this right, then the night time information was found out not-on-purpose which makes it a bit dodgy to start a conversation.

    Therefore find out the information on purpose. Audit e-roads for all vehicles, start an education campaign about fatigue, about work/life/sleep balance, safe driving practices etc. Then you will have firm ground from which to start a conversation.

    However, from what you say it sounds like Bob may have a night-time job. In which case what home pressures are on Bob to be working two jobs giving him a potential 3 hour sleep window? What can work do to help Bob (and all other employees) have a better home/work/sleep balance?

    Fatigue may be a risk outcome of Bob's activities, but it certainly is not the cause of the activities.

    Good luck!
  • Rowly Brown
    48
    There are likely to be many “Bobs” in this country, i.e. people who turn up to work apparently “impaired” for one reason or another. Consider this as a hypothetical case, and examine the implications, then extrapolate it back to Racheal’s query. Remember that the Privacy Act allows for the acquisition of personal information where it is demonstrably relevant and necessary in the particular circumstances, or is already in the public domain.
    Billy-Bob is a commercial traveller / salesman for a veterinary product supply company. He is based in a large city. His sales territory includes the city, surrounding towns, and a large rural area. He has a company vehicle which he takes home to garage each night. As compensation he has full private-use rights to the vehicle, while the company services and maintains it. Billy-Bob usually calls into the office depot most mornings if he is not out of town overnight, to pick up promotional materials, make calls, receive leads etc, and he often picks up urgent product orders to deliver to customers in rural NZ. He visits veterinary clinics, and occasionally farmer clients of those clinics.
    Billy-Bob is re-married, with three teenagers and a newborn in the household. Three months ago he “wet the baby’s head” with the office staff.
    Unbeknown to his employer, Billy-Bob is also an experienced Bar Manager and is employed by a large venues management company. This role requires him to have oversight of staff and service delivery at functions and events run by the company. This typically involves weekends and occasional weeknights.
    Office depot staff have noticed some behavioural changes in Billy-Bob but are unsure why. There has been an increase in customer complaints regarding appointments not kept, and some promised urgent deliveries not made, or made late. Billy-Bob’s manager is thinking he probably needs to have a chat to Billy-Bob about his work performance but is unsure how to initiate the process. Before he can, Billy-Bob’s wife calls the manager to advise that Billy-Bob is in hospital with a broken leg. He fell down the steps of a farmers woolshed. He is in plaster to the groin and will be unable to drive a vehicle. He is likely to be off work for 8 weeks minimum. She is concerned that he has been working long hours, driving long distances, and has been quite tired lately. She is enquiring about his ACC compensation payments. A loss of income will have a serious impact on the family finances. Billy-Bob’s manager is pondering his responsibilities in this situation, and what he should have done.
    A prudent employer will have established policies/rules around their employees working more than one job e.g. secondary employment. This policy should be made clear to prospective employees prior to engagement.
    The rationale is twofold.
    Rationale 1) If an employee is working two jobs (or more) their risk of injury / incapacity will be increased due to the greater overall exposure time to work related hazards, such as potential fatigue, amongst others. The risk is likely to be further exacerbated if one job is somewhat more hazardous than the other. The likelihood of fatigue alone becoming a risk factor in either job is obvious if both jobs are performed within the one 24-hour period.
    Again, of course, a prudent employer will have identified the work-related hazards and put in place the controls required to mitigate risk of harm to employees as far as reasonably practicable. As part of their pre-employment screening employers should be asking questions regarding any predisposing conditions a person may have that would increase their risk of being harmed in the job. This may be in the form of a health questionnaire, and any red flags raised referred for an appropriate professional assessment. After all, an employer must ensure a person is not harmed in the course of their employment as far as reasonably practicable, and ensuring their physical and mental status is compatible with the role is essential. The current discussions regarding Covid-vaccinated vs unvaccinated employees in critical roles is a topical example.
    Where activities a prospective employee may undertake outside of the offered employment potentially present a high risk of injury this could impact negatively on the employer’s ability to meet their business commitments in the event the employee is injured / unwell and thus unable to work. While the likelihood of an accident external to the business negatively impacting an employee’s ability to perform all of their duties may be a more difficult assessment to make it would nonetheless be relevant in critical roles or where unique skills are involved, e.g. surgeons, pilots, etc.
    So maintaining business continuity where the availability of specialist skills is essential and depended on may well be grounds for requesting of employees, both prospective and current, information about the nature of any extracurricular activities, assessed on a case-by-case basis. Certainly questions about health status can be asked where relevancy can be established, and questions about other employment commitments can be asked due to an employer’s obligations to pay earnings -related compensation to injured employees as provided by the Accident Compensation Act 2001.
    Rationale 2). An employee injured in the course of their employment and unable to attend work is entitled to earnings -related compensation for all of their lost earnings. If the injured person has more than one employer i.e source of PAYE earnings, they are entitled to earnings -related compensation based on the total lost earnings, i.e. from all jobs. (See ACC Act Sch.1 Cl.13]
    The employer in whose employ the employee was injured is liable to pay earnings -related compensation based on the aggregate sum of all the employees lost earnings, at the rate of 80%, for the first week of incapacity. ACC then pays the same amount for the subsequent weeks of incapacity from work. The maximum amount of weekly earnings -related compensation that ACC is liable to pay is $1341.31.
    In the hypothetical “Billy-Bob’s case above, if Billy-Bob’s earnings were $1200 / wk from the Vet Supply company, and $600 / wk from Venue Management, Vet Supply would be liable for $1440 compensation for the first week lost earnings (i.e. 80% of $1800.00), and ACC’s liability would be $1341.31 for the subsequent weeks of incapacity. Vet Supply would be paying more in compensation for the first weeks lost earnings than Billy-Bob would actually have earned.
    If Billy-Bob had been injured while working for Venue Management they would have been liable for $1440 first weeks compensation, i.e. almost 2 ½ times his usual earnings from them.
    ACC’s payments would remain the same. However earnings -related compensation (and other costs) is recorded against individual employers accounts by ACC for the purposes of Experience Rating. Where accumulated costs of claims exceed the industry average for that employer ACC has the ability to increase their levies accordingly.
    For these reasons employers should be screening prospective employees for suitability and capability, asking the right questions to identify and manage extraordinary employment related risks, and managing those potential risks to their business, as well as doing their utmost to protect their employees’ well-being.
  • Aaron Marshall
    75

    That would be an interesting case. What would the employee's liability be, given that they have a duty to not introduce hazards into the workplace?
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