Volunteer commitments bring dilemma
or as firefighters? They would frequently need to drop work for emergencies that receive far less public interest. Eighty per cent of New Zealand’s Fire and Emergency service are volunteers. Search and Rescue has more than 3000 trained volunteers and the Coastguard has 1800 volunteers crewing 75 rescue vessels around the country.
Despite this, New Zealand does not have specific protections for ‘‘ workers’’ who volunteer for these important organisations. Therefore, workers may find themselves caught between their duties to their employer and their commitment to serving the community.
In New Zealand, workers have a fundamental duty to obey all lawful and reasonable instructions from their employer. If the worker does not have an entitlement in their employment agreement or a policy to leave work to volunteer, the employer can instruct them to continue working rather than attend an emergency. If the worker then leaves, the disobedience could be misconduct and result in a warning or dismissal.
However, a New Zealand employer who dismissed a worker for attending an emergency would face significant public criticism.
Morally, employers should give such volunteers reasonable support. From an employment law perspective they may be on shaky ground if they do anything else.
What if people were trapped in the Waitomo Caves? Health and safety laws would play an important part in deciding whether a rescue mission was carried out. After all, for years safety concerns have prevented re-entry into the Pike River mine. Yet if someone’s life is in danger, of course you do whatever you can to save them.
The existence of a risk of death is not automatically a breach of health and safety laws.
In a case involving River Valley Venture, a junior guide died after he was thrown from a raft, became trapped under water, and drowned. The District Court convicted the company for breaching health and safety requirements.
However, on appeal, the High Court quashed the conviction as it was not clear that River Valley Venture had failed to take all practicable steps to prevent death. There would be a risk of death regardless of the steps taken.
The question is, at what point does the risk of death become so great that the enterprise should be abandoned?
In a situation like the Thai caves, the important thing is to take all reasonably practicable steps to ensure the safety of rescuers.
The Thai mission was clearly very well planned. Of course it would be possible to carry out such a rescue in New Zealand. It would be crucial to take steps to minimise the risk to rescuers and maximise the chance of survival for the trapped.
That does seem to be what took place in Thailand. The rescue was a tribute to human courage, international co-operation and intelligent planning.