Floyd Harris. Photo: Supplied
The families of two labour-hire workers killed in a road smash on their illegal commute, have spoken up about four years of hitting not so much a brick wall, as blank stares, in their quest for answers - and accountability. Phil Pennington reports in part two of a two-part story.
The Ginders and Harris families miss their boys, Jake who died age 23, and Floyd, 21, every day.
"His headstone has a quote on it that says, 'Once met, never forgotten' and that was true of Floyd's character," his mother Sharon Harris told the inquest in Palmerston North in March over their deaths in January 2019 near Dannevirke.
After they never made it back from an early-morning 50km commute arranged by their employer, AWF - even though both only had learner licences - the families trusted the crash, and its causes, would be investigated properly.
"Yeah, I was leaving that side of Floyd's passing to who I thought would be handling it appropriately," Harris said outside the hearing in March.
"But it seems now that it was just being shunted from desk to desk to desk, and not getting the justice that it required."
RNZ was unable to report on the families' experiences until after Coroner Janet Anderson delivered her findings on Thursday.
The families had no idea of the police and WorkSafe system they had stumbled into, bereaved, in 2019, and one they would be ensnared in for the next four years.
Within days of the deaths, the company AWF tried to notify WorkSafe, only to be told that as it was a road crash, it was not a matter that needed to be reported to the Crown agency, the company told the coroner.
Jake's aunt Diane Chandler also called WorkSafe within days of the deaths.
It was the first of the Levin woman's many attempts to trigger the sort of health and safety investigation - alongside a simpler crash investigation - that would look into whether the labour-hire industry generally was exploiting or endangering vulnerable young workers with a business model that relied on informal carpooling.
AWF said it did not do any informal transport arranging anymore, at all.
"They [WorkSafe] told me they would investigate if the police asked them to in the police report, and ... that I could get hold of the police and ask them to do that, which I subsequently did," Chandler told RNZ.
Among the many gaps that have emerged, the inquest heard that WorkSafe has no record of the calls from either AWF or Chandler.
The agency never spoke to either family again, up to this day; the police, similar.
"I got nothing from the police at all," Chandler said.
A short police email to her in March this year apologised for the lack of communication.
Jake's father Mark Ginders also experienced this, recalling: "I've lost my son and who do I go to, because the police didn't want to know."
Chandler kept records of the next four years, relying on the coroner for information and enduring months hearing nothing, especially during Covid, when coronial cases got shuffled around.
Mark was too devastated to work, and had to look after his other children, his sister said.
Mark Ginders, left, with a photo of his son Jake when he was younger, and Jake's uncle Wayne Ginders (right). Photo: RNZ / Phil Pennington
WorkSafe, in fact, had visited AWF in Palmerston North, six months after the deaths, in July 2019, after some contact with the coroner.
While it remains unclear to the families exactly what triggered this - and they did not learn of it for months - it jumped high up at WorkSafe, to its 'Strategic Response Review Group' comprising the head of operational excellence, the manager of public enquiries and notifications, the chief regulation adviser, the head of media and communications, and the head of specialist interventions.
The high-powered group ordered an inspector to stop by at AWF, on two visits.
"The key focus was the changes made by AWF to driving procedures following Floyd and Jake's deaths," the coroner said.
This resulted in an assessment, and then approval from WorkSafe of the changes the company had made - a tacit admission they had been unsafe, the families say, and the company has said as much, too, in two letters of apology to the Ginders, the first in early 2021, two years after the deaths.
A year before, in January 2020, was the end of the 12-month period in which, as in all such cases, WorkSafe had to lay charges: A successful prosecution on health and safety charges is the major way victims can receive reparation payments ordered by the court from a convicted business.
"At this time, we haven't had [sic] been advised of any formal findings from the police or the coroner as to the cause of the accident," former AWF chief executive Simon Bennett, wrote to Mark Ginders on 25 January 2021.
"Notwithstanding, we have made changes within our business because of this tragedy.
"However, the purpose of this letter is not to provide you with assurances of what we are doing to prevent this situation from occurring again, but rather, we hope to convey to you our genuine and sincere sadness and to let you know that we take accountability for the role we played."
But in mid-2019, at the time AWF was convincing WorkSafe of its remedies, the families knew nothing of what was going on.
"I feel dissatisfied in the way that WorkSafe conducted its initial investigations and, in fact, I didn't even know that there was an investigation until I got an email on my birthday," Sharon Harris told the inquest in March 2023.
Diane Chandler heard about WorkSafe's sign-off of processes to replace the earlier, unsafe ones, from AWF itself only in November 2019.
"I got the impression ... that this was done and dusted, so I thought, we thought, bugger," she said.
In fact, there was no health and safety investigation, and never has been.
Police could have done one, under delegated authority from WorkSafe, but did not.
Under an agreement with WorkSafe, police are meant to discuss each such case, to see if such an inquiry is warranted and assign it to one or other of them. This process had just been set up as of October 2018 - and its early flaws had already led to confusion that handicapped the Turoa skifield bus inquiry since 2018.
WorkSafe had instead done a lower-ranking "assessment" at AWF. It was closed off in 27 days in August 2019, and WorkSafe produced no formal report, just an email.
"No investigation, no report. There's a couple of simple emails back to the coroner," Diane Chandler said.
"We were absolutely disappointed" - she had spoken at the inquest of being "betrayed" - "but to be honest, my view was well, you know, it's only really big high-profile deaths that they are really concerned about, that ... seem to get any traction and that this was just not that important.
"I learned that actually, neither the police nor WorkSafe were at all interested."
A few months on from this, WorkSafe made a big deal at a media conference about the huge investigative and legal resources it put into investigating the Whakaari White Island tragedy. This covered a period when it had failed to investigate the Turoa skifield bus death, until a coroner basically forced it to, leading to charges and sentencing just this week. In the skifield case, WorkSafe, belatedly, sought reparations on behalf of the victims, a total of $420,000, covered by insurance.
One of the Ginders' arguments with authorities has been that Mark Ginders should be compensated for Jake's death. That is not resolved.
It was only in mid-2022 the Ginders and Harrises got the welcome news the coroner would hold an inquest; up to that point, that was not a given.
Among the other information that has dribbled out, is the fact the police had little to do with the company, AWF.
But what about the police crash report? The one WorkSafe had told Chandler back at the start, would be key to triggering a health and safety investigation?
It turned out that in the 2019 report, the police did ask WorkSafe to investigate.
But WorkSafe said it did not see that report till late last year, much, much too late to do anything.
The families suffered through this not in silence, but in isolation, Sharon Harris said.
"At the time, it wasn't my main focus. I was more focused on my other children getting through the day to day.
"I just looked at it and thought, 'well, I already knew what happened. I didn't need to know any more'. But as the inquest started to draw closer, then more evidence was presented and that's when I became dissatisfied."
In the coroner's findings, the agency's lawyer called its work on the case of Floyd and Jake, a "formal, planned, and systematic process".
"The WorkSafe team have considered the referral ... and are of the view that the matter would be dealt with in the exact same way by WorkSafe if the notification was received today," the coroner wrote in her findings out on Thursday.
"Counsel for WorkSafe informs me that WorkSafe has reviewed the information it now has and considers that the action taken at the time was appropriate and that this matter does not meet the threshold for further investigation."
Nevertheless, Coroner Anderson referred the case back to the agency, saying one reason it warranted another look was the "nature and adequacy of information" WorkSafe had in 2019.
This was what the families had asked for at the inquest, with the added caveat from Sharon Harris, that family input be guaranteed.
In 2020, the Workplace Safety minister told WorkSafe it must take a coroner's referral back very seriously and get external legal advice about it, after the agency botched an investigation into how two small boys died in a Desert Road smash, a case RNZ has covered extensively.
WorkSafe told RNZ in a statement it was giving full consideration to the AWF findings.
It said communication with victims' families was better now than before, and in a statement - it declined an interview - it reiterated its "sincere condolences" to both families.
The families said they had not heard from WorkSafe since the inquest.
RNZ has requested WorkSafe's call logs around the notification but it has so far refused them, saying that might prejudice any inquiry it does.
Police have been approached for comment.
WorkSafe said it recognised the case "has been lengthy and painful" for the families and the coronial findings were another difficult milestone.
On its assessment of AWF in 2019, it said: "We regret that our actions were not communicated directly to the families at the time, however details about WorkSafe's response have since been shared with them through the coronial inquiry."
It would make a decision itself whether or not to investigate following the coroner's referral, and if it did, the next step could be to seek external legal advice.