Workers in supervisory roles should be encouraged to promote health and safety policies and compliance with them uniformly
by Sarah-Lee Stead, Special Counsel, and Richard Monigatti, Associate, at Kensington Swan from the specialist Health and Safety team.
When an employee breaches health and safety standards, an employer must balance its health and safety obligation to make the workplace safe, and its obligations to each employee under the Employment Relations Act 2000. This issue was considered recently in McCann v Waste Management NZ Limited [2019] NZERA 107.
Unjustified dismissal
Mr McCann worked as a materials handling operator at one of Waste Management’s resource recovery facilities. He was crushed and seriously injured while moving a recycling ‘tube’ across the site with a colleague. After Mr McCann returned to work, Waste Management investigated the accident. Waste Management summarily dismissed Mr McCann, finding that he had seriously breached his employment agreement by failing to follow:
Mr McCann contested the decision in the Employment Relations Authority. The Authority held that the decision to dismiss Mr McCann was not one a fair and reasonable employer could have reached in all the circumstances at the time, and ordered Waste Management to pay compensation to Mr McCann.
Where did waste management go wrong?
While breaches of health and safety have previously been accepted by the court as grounds for dismissal (see Kaipara v Carter Holt Harvey Limited [2012] NZEmpC 40), Waste Management’s written procedures didn’t meet the needs of the workers. As a result, employees had devised a procedure for moving tubes that was not incorporated into Waste Management’s work instruction documentation. The Authority held that Waste Management had tacitly accepted the work around, and employees could not be criticised for exercising professional judgement within the scope of their responsibilities.
The Authority also found that Mr McCann had not failed to follow the supervisor’s instructions because he was not given a clear or concise instruction by the supervisor not to move the tube. The Authority was critical of the evidence relied upon by Waste Management to support this alleged breach, finding it was ambiguous. It considered that a reasonable employer should have investigated further to clarify the facts before deciding to summarily dismiss Mr McCann.
Finally, the Authority held that the policy containing the five-metre safe zone rule was remedial, not punitive. It was not appropriate for a breach of this rule to be addressed by way of dismissal, as the policy did not indicate it was ‘one mistake and you’re gone.’
What can employers learn from the McCann decision?
This case is not a reason to shy away from following employment processes to deal with safety breaches. However, McCann is a caution to employers to ensure their health and safety standards and policies are effective in practice and also conveyed to employees clearly and consistently before relying on them to dismiss an employee. Training, testing, and employee consultation can assist with ensuring proper employee understanding and engagement in health and safety and that the processes are fit for purpose. Workers in supervisory roles also should be encouraged to promote health and safety policies and compliance with them uniformly.
