Family's anger after WorkSafe declines to investigate young men's deaths

Wayne Ginders (R) and his brother Mark Ginders (L) holding a photo of his son Jake as a boy.
Wayne Ginders (R) and his brother Mark Ginders (L) holding a photo of his son Jake as a boy. Photo credit: RNZ / Phil Pennington

By Phil Pennington of RNZ

The family of a young man killed in a road crash are "gutted" after their five-year fight for someone to be held accountable hit a brick wall.

Labour-hire workers Jake Ginders and Floyd Harris died during their illegal commute to a meatworks near Dannevirke in 2019.

Their employer, AWF, had arranged for the pair to carpool - even though both only had learner licences.

A coroner earlier told WorkSafe to reconsider its decision not to launch a probe into the circumstances of the men's deaths.

But WorkSafe has now told the men's families it already did enough and will not investigate.

It visited AWF months after the crash, and though it made no written report at all, concluded the major firm had adequately tightened up on safety.

"Further investigation into the matter would not be an efficient nor effective use of WorkSafe's finite resources," it said in a 12-page decision sent to the families.

"This is mainly due to the fact that the most likely outcome would not see a significant impact" because AWF had already improved its practices, the decision said.

WorkSafe also argued the crash was essentially a police matter.

During the coronial process, it emerged that police had at the time asked WorkSafe to look into the crash - but WorkSafe said it did not see that request until much later.

"WorkSafe has no records of AWF or NZ Police making any notification regarding this incident at the time of the incident or immediately after," its new letter to the families said.

The agency maintained it only found out about the crash in July, six months on.

Ginders' aunt Diane Chandler said WorkSafe shutting the door on an investigation was a final blow for the families.

"We are absolutely gutted."

While she was sure AWF was shocked by the deaths, and had made improvements to its processes, "I think there should have been a prosecution", she said.

"No matter what these companies say, we all know anecdotally, we know kids who work in these places and they are pressured, they're vulnerable.

"I don't think this outcome has actually come out on the side of the worker."

AWF was approached for comment.

In its document sent to the whānau, WorkSafe ticked off several boxes that suggested it should have launched a prosecution .

"WorkSafe expects that prosecution would normally be recommended when one or more of the following circumstances apply," it said, then ticked off three boxes, including "where non-compliance resulted in death - double fatality".

"The deaths alone, plus two other things, and they still say there's nothing to see here," Chandler said.

"The thing we are gutted [the most about] is the coroner was prepared to invest three days of a public hearing based on submissions that we put through. She was obviously convinced there was something to be found here, and they've [WorkSafe] waited cynically till the last minute and then they just tossed all of that aside."

The case is not an isolated one: In other work-related road fatalities, such as the Tūroa skifield bus crash that killed 13-year-old Hannah Francis, health and safety investigations have been sunk or complicated by lack of coordination between WorkSafe and police.

WorkSafe also attempted in its letter to the men's families to put some of the responsibility onto Harris, who was driving.

"The actions of the driver may have contributed to the incident insofar as he was not abiding by the conditions of his licence and therefore should not have been driving," WorkSafe wrote.

"It should be noted that had the driver survived the incident, the police may have considered charges under the Land Transport Act.

"He should have informed AWF that he was only a learner driver."

However, the inquest was told that AWF had the learner driver status of both men on file. Despite that, a manager bought petrol for Harris to do the commute.

His mother told the coroner her son was autistic, eager to please and easily persuaded. He was "too scared to say no", she said.

RNZ has approached the Harris family for comment.

WorkSafe also referenced the time the case had taken in its decision not to carry out an investigation.

Investigating four years after an event "provides many challenges", it said.

If an investigation found AWF failed to meet its health and safety duties, WorkSafe would need to show it had evidence of that beyond a reasonable doubt and that any prosecution would be in the public interest.

"It is unlikely that WorkSafe could meet this requirement in respect of this matter.".

RNZ has asked WorkSafe to provide the written record of its evidential decision-making model, which it is required to follow when it decides whether to prosecute or not.