WHS Officer Due Diligence Duties: NZ Conviction of KiwiRail CEO
In a landmark case for workplace health and safety (WHS) governance, Tony Gibson, the former CEO of Ports of Auckland Limited (trading under KiwiRail port operations), was convicted in 2024 for breaching his duties as a WHS officer. The case marked a significant turning point in understanding and enforcing the legal responsibilities of senior executives under WHS legislation. Gibson was personally fined NZ$130,000, with an additional NZ$60,000 in costs, for failing to ensure effective implementation and verification of risk controls—despite policies being in place.
The charges stemmed from a tragic incident in August 2020, when stevedore Pala'amo Kalati was fatally injured after a container fell during loading operations. Investigations revealed that known risks related to crane operations were not effectively controlled. Despite existing policies that outlined safety protocols, exclusion zones around cranes were inconsistently applied and inadequately monitored. As CEO, Gibson was found to have failed in his due diligence obligations by not ensuring those controls were properly implemented and functioning.
Legal Findings
Gibson was charged under Sections 48 and 49 of the Health and Safety at Work Act 2015, which place a duty on officers to exercise due diligence in ensuring compliance with WHS duties. The District Court found that while Gibson had instigated positive safety initiatives, he did not verify the application and effectiveness of critical safety controls. His conviction underscored a crucial legal distinction: having WHS policies is not equivalent to ensuring their real-world application and effectiveness.
Implications for WHS Governance
The Gibson case sets a precedent for how WHS responsibilities are interpreted and enforced, particularly for senior officers in large, complex organisations. Key takeaways include:
● Officer Liability: Officers can be held liable for failures in execution, even without intent or direct involvement in operational details.
● Verification Obligation: Due diligence includes the duty to actively verify that risk controls are not only implemented but are effective.
● Systems Oversight: Governance must go beyond surface-level oversight (e.g. board reporting only) to include independent assessments, audits, and frontline engagement.
All Shared Safety and Risk consultants have extensive, cross-sector experience conducting independent WHS assurance and verification reviews for Boards and Executive under either legal privilege or direct engagement. Our discovery phase identifies key operational WHS risks and peels back the layers of the ‘procedural onion’ to validate the effectiveness of controls in practice. Our insightful and practical reporting allows Officers to get a ‘real world’ picture of WHS management in their organisation.
The conviction of Tony Gibson is a wake-up call for executive leadership across all sectors. WHS officers must not only endorse safety policies but also take proactive steps to ensure those policies are embedded, functional, and evidenced in daily operations. The case draws a clear line: documentation alone is insufficient—what matters is demonstrable, verifiable action.
