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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Safeguard Magazine

Legal viewpoint — In harmony with HR

BLAIR SCOTLAND argues that for harmonious relations between HR and OHS, each needs to understand where the other is coming from.

Our employment law framework differs markedly from its health and safety counterpart, which is based on potentially onerous obligations and the possibility of criminal charges for employers. In contrast, employment law is based on a large body of common law principles made by judges underpinning a broad legislative framework. Employees generally have to pursue their own legal action against an employer, and the burden of proof is significantly lower.

The Employment Relations Act 2000 sets out the standards an employer must adhere to, particularly in relation to disciplinary action, including the key “justification” test in section 103A whereby an employer must be able to prove that its actions were what a fair and reasonable employer could have done in all the circumstances. Unless the employer has compelling reasons to end the employment relationship, the courts will find that it was an unjustifiable decision. In contrast to the strict liability faced by employers for breaches of health and safety law, the legal test is more permissive, more situation-dependent.

While a serious breach of health and safety policies and procedures by an employee can justify dismissal, what actually occurred, and what the policies and procedures actually say, is important. Take for example the case of Flynn v Fonterra Brands [2014] NZERA Auckland 2, which involved Fonterra employees who were dismissed for videoing themselves dancing in a milk processing plant as part of an internet fad known as the “Harlem Shake”. Mr Flynn was dismissed for engaging in unsafe acts, the inappropriate use of PPE and a failure to report unsafe acts.

Flynn challenged this decision and sought reinstatement. The Employment Relations Authority found that he had not acted in a way that endangered the health, safety and/or wellbeing of employees as contemplated by Fonterra’s disciplinary policy. Further, it held that he had not misused PPE, and that Fonterra’s own policies only imposed an obligation to report health and safety breaches where there was an accident, injury or damage. His dismissal had been unjustifiable and he was permanently reinstated.

His employer unsuccessfully argued that a breach of health and safety policies and procedures amounted to serious misconduct justifying dismissal, and that its managerial prerogative to decide whether to end someone’s employment should prevail where there were questions of safety.

Given the liabilities placed on employers under health and safety legislation, this argument has some obvious merit. The Employment Court has made it clear that safety issues “have a status of their own” and that it will be slow to reach a decision contrary to that of an employer where health and safety issues are involved. The Courts have allowed employers more latitude in disciplinary situations than they otherwise would where safety issues are involved, including the strict implementation of an existing health and safety policy that was previously enforced in a more relaxed way.

In Fuiava v Air New Zealand [2006] ERNZ 806, Mr Fuiava was employed as a cargo handler and was dismissed for failing to comply with his employer’s dangerous goods handling procedures. He argued he had been treated unfairly as Air New Zealand had not dismissed other employees who had breached similar procedures. The Court accepted that there were good reasons for the disparate treatment because of the fundamental importance of safety and health to his position of cargo handler. Fuiava had also received a recent reminder of the consequences of breaching the dangerous goods requirements. His dismissal was upheld as lawful.

Latitude around safety issues only goes so far however. In Flynn, the employer’s own policies and procedures, compared in the context of the employee’s actions, did not sufficiently justify dismissal. The Courts will want proof that an employee was aware of the employer’s policies and the consequences of breaching them, that a sound investigation was carried out, and that the substantiated breach was serious enough that a fair and reasonable employer could have dismissed.

Health and safety practitioners can add real value for their HR colleagues in drafting or rewriting employment policies. Ensuring that health and safety policies are consistent with disciplinary policies is key. Further, ensuring that employment policies reflect workplace realities (including actual hazards and their potential seriousness), is more likely to mean that everyone understands what is required and what will happen if those requirements are breached.

Health and safety practitioners are often also skilled in conducting investigations into breaches, which can be useful when an employer is considering taking disciplinary action. A word of caution however – employment law imposes procedural requirements when interviewing employees suspected of misconduct, including the right to representation and to know the potential seriousness of the outcomes. These requirements have the potential to impede a safety investigation, and can raise concerns about the legality of using information gathered for one purpose for another.

Where health and safety and HR professionals work together they can ensure that issues are dealt with effectively. Understanding where each one is coming from and their respective legal challenges is key to achieving the best outcomes.

Blair Scotland is a partner with Dundas Street Employment Lawyers in Wellington.

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