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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Alert24 - Safeguard Update

Safety policy dismissal

Safety policy dismissal
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New Zealand

A manager who failed to report an incident in breach of his employer's health and safety policy was justifiably dismissed, the Employment Relations Authority has found.

Adams was a branch manager with Hirequip Ltd. His employment agreement contained an occupational health and safety clause that included requirements to comply with any health and safety code, report all faulty machinery or equipment, and report all accidents promptly. The company's health and safety policy required managers to report all work injuries and "near miss incidents" to the regional manager and health and safety manager within 24 hours.

A cherry picker from Adams' branch caught fire while it was on hire. The operator was in the basket nine metres above the ground but was luckily able to escape without injury. A staff member reported the incident to Adams on 9 June, but the regional manager didn't become aware of it until 11 June when he observed the fire-damaged cherry picker.

There was an investigation into Adams' failure to report the incident. He claimed that he was too busy on the 10 June to report the incident and planned to report it the next day at a management meeting. The investigation concluded that the event was extremely serious and there was an actual risk of extreme harm, potentially fatal, to the customer. Adams acknowledged that he should have reported it immediately and there was no excuse for his failure to do so. He was dismissed for serious misconduct.

The Employment Relations Authority rejected Adams' argument that his staff had let him down - there had been a complaint about a fuel leak on the cherry picker a few weeks earlier and his staff had not reported this to him or taken the required action. The Authority referred to the primacy accorded to management roles in the company's health and safety policy and the important additional obligations that managers and supervisors had under that policy. It could be said that Adams, in failing to ensure his staff knew what ought to be done when there was a problem, was himself culpable.

The Authority determined that Adams committed fundamental breaches of his employment agreement and company policy. The HSE Act imposes serious obligations on all parties to the employment relationship and an employer is right to emphasise the primacy of those obligations. Those obligations are all the more onerous for management roles.

Adams completely failed to fulfil any of his obligations in respect of the cherry picker incident. This was not just a failure to file an appropriate report, but was a failure to undertake a basic duty of a branch manager to ensure the safety of co-workers and clients. His dismissal was justified (ERA Auckland, 14 September).


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