The Duty to Consult on Health and Safety - Farrell v Chief Executive of the Department of Corrections [2024] NZERA 331 and [2026] NZERA 143

Matthew O'Connell & Myriam Mitchell • 30 April 2026

A recent decision of the Employment Relations Authority (ERA) highlights the critical importance of employers consulting with employees about health and safety risks in the workplace.


Background

The case involved a corrections officer, Mr Farrell, who was assaulted multiple times by prisoners over a two‑year period while working in his home unit. Mr Farrell raised a personal grievance alleging unjustified disadvantage arising from:

  • breaches of his Collective Employment Agreement; and
  • breaches of the Department of Corrections’ statutory obligations under the Health and Safety at Work Act 2015 to provide a safe system of work.


During this period, Corrections received intelligence reports identifying that Mr Farrell was at risk of harm. These reports were not shared with him, nor did Corrections develop a return‑to‑work plan or consider redeploying him to another unit. Instead,


Corrections continued to offer him overtime in his home unit despite the ongoing risk, and failed to undertake a proper risk assessment.


The ERA’s Findings

The ERA, in its 2024 determination, held that Mr Farrell had been unjustifiably disadvantaged by Corrections’ failure to provide him, in a fair and reasonable manner, with relevant information about serious threats to his health and safety following his return to work.


In addition, the ERA found that Corrections failed to take reasonably practicable steps to provide Mr Farrell with a safe working environment. Following the second incident, Corrections had instructed Mr Farrell merely to “stay away” from the prisoner. The ERA found this instruction was vague and inadequate in circumstances where there was an acute and known risk. What was required were clear and specific instructions to guide Mr Farrell’s interactions with the prisoner in the period immediately following the assault.


The ERA also considered two further findings of unjustified disadvantage. First, Corrections placed Mr Farrell on alternative duties at the gatehouse on 13 March 2018 following a disciplinary process arising from the 9 March incident. Second, Corrections suspended Mr Farrell on 6 April 2018 after Police charged him in relation to the 20 April 2017 assault. In relation to the gatehouse placement, Corrections failed to fairly consider Mr Farrell's views before making its decision. In relation to the suspension, while suspension may be appropriate in some circumstances, the ERA found that Corrections failed to follow a fair and proper process by considering alternative duties before proceeding.


Outcome

In its 2024 determination, the ERA reserved its decision on remedies to allow the parties an opportunity to resolve these matters themselves. However, this was not achieved. As a result, in 2026, the ERA ordered Corrections to pay the following remedies:

  • $60,000 for compensation;
  • $9,500.06 (gross) for lost overtime;
  • $25,000 in general damages; and
  • $8,000 in penalties (50% payable to Mr Farrell).


Key Takeaways for Employers

This case provides important guidance for employers:

  • Risk assessments and safety information: Relevant risk assessments and safety intelligence should be shared with affected employees so they can meaningfully engage in discussions, particularly when developing return‑to‑work plans or threat assessments.
  • Consultation and process matters: Employers should carefully review their policies and employment agreements when considering suspension or alternative duties. Any changes must be proposed and consulted on, and alternative duties should be considered before suspension is imposed.
  • Employee concerns must be taken seriously: Requests and concerns raised by employees regarding health and safety risks must be carefully assessed and responded to in a timely and considered manner.


The decision reinforces that health and safety obligations are not merely procedural – meaningful consultation and proactive risk management are essential to meeting both statutory and contractual duties.


Disclaimer: We remind you that while this article provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace. 

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