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latest news in employment law


Published 01 Dec 2009

Te Rangi vs Tachikawa Forest Products New Zealand Ltd

This case can be directly compared to the 'Risk Takers' in farming. Farming is not a 'prissy' industry. Employees exposure to hazards – and significant hazards at that – are numerous and varied. The case below gives rise to a need to also view it as if the employer had failed to have OSH systems in place. Guess what?

In the ERA, Auckland, the ERA found the employee had no grounds for a complaint of unjustified dismissal.

The ERA found the employee failed to comply with his employer's specific health and safety instructions and this led to the employee's claim of unjustified dismissal being overturned.

The employee had been dismissed after an incident during which he was seen clearing a machinery blockage by an unsafe means. The employee was operating a horizontal saw that became blocked by boards on a conveyer belt. To free the blockage, he shut the machine down and then approached the blockage area from a high (5 metres) walkway from the floor. To access the blocked area he climbed over the walkway's handrails and then, after removing the blockage, he climbed back again.

The Site Safety Manager and the Site Manager saw the employee expose himself to the hazard. After a formal report there was an immediate formal investigation. The employee had been trained in safe procedures and demonstrated he knew what to do but said he acted out of urgency, that the alternative procedures were not as safe as those he took and they were too slow.

The ERA found the employer had acted fairly and its procedures were sound, found the employee's misconduct was serious and there was no basis for an unjustified dismissal complaint.

The employee's actions demonstrate the need for OSH legislation and how carefully followed correct procedures offer the protection business owners seek and need. It might also be fair if the complaining employee now paid for the employer's costs of the defence in the ERA hearing and the employer's investigation costs. The facts of the case suggest the complaint was baseless and maybe even vexatious. If employees do not share in the risks of consequences of a court case decision then the law seems to encourage this 'nothing to lose' situation. It doesn't seem fair that employees can discriminate on the grounds of 'owning a business' with no accountability if they lose.

Employers Assistance Ltd have trained, qualified and experienced OSH consultants who are available to implement or assist with your OSH programme. For more information, please email or phone 0800 15 8000.