The
employee was sucked into a machine, while bending down to pick up an item. He
was seriously injured in the accident. The employer dismissed him for failing
to adhere to its safety procedures.
The ERA
held that the suspension was unjustified as the employee was not directly consulted
about the employer’s decision to suspend him.
The ERA found
that an employer may dismiss an employee for a single act of carelessness in
some circumstances but held here that the employer failed to act as a fair and
reasonable employer could in the circumstances by not providing the employee
with the opportunity to see and comment on reports made about the incident, and
for dismissing the employee without considering all of the health and safety
reports.
The ERA
held that failure to follow standard operating procedures was listed by the
employer as misconduct rather than serious misconduct, and found that the
employer should have noted, and considered, other disciplinary actions such as a
final written warning. The ERA also noted that there was no danger zone placed
around the machinery to alert the employee of the hazard, and felt that there
was a gap in the employee’s training as he normally used his foot to retrieve
items while the machine was running.
The ERA therefore
awarded $4,100 for lost wages plus $10,000 compensation. 33% was deducted for
the employee’s own contribution to the dismissal as he should have stopped the
machine before collecting the fallen item. However, the ERA took into account
that the incident was not a deliberate breach of procedure but an accident.
This may seem an unusual finding when the employee failed to turn off the
machine which could have been said to have been a deliberate breach of
procedures. Perhaps if the employer had got its disciplinary procedures right
then the employee may have been justifiably dismissed.
Alan KnowsleyEmployment Lawyer Wellington
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