| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 324 |
| Hearing date | 8 Aug 2012 |
| Determination date | 14 September 2012 |
| Member | J Crichton |
| Representation | R Bowden ; R Webster |
| Location | Auckland |
| Parties | Adams v Hirequip Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for failing to report near miss safety incident – Authority found likely applicant did not report incident – Found applicant failed to perform obligations under employment agreement and health and safety policy – Found respondent undertook proper process by conducting initial inquiry and commissioning full safety audit – Found applicant appeared to accept wrongdoing at disciplinary meeting but without offering any viable explanation – Found applicant failed to undertake basic duty of branch manager to ensure safety of co-workers and clients – Dismissal justified – Branch manager |
| Abstract | Applicant employed by respondent as branch manager. Applicant claimed unjustifiably dismissed by respondent. Applicant became aware certain machine had caught fire while being used by client. Manager (“A”) denied told of incident by applicant one week later and claimed discovered incident after observing fire damaged machine in yard. A spoke to applicant and claimed applicant said matter not serious as client not injured. A commissioned report into incident that concluded incident extremely serious and posed actual risk of extreme harm to client and potential risk of fatality. Respondent claimed applicant breached employment agreement (“EA”) by failing to report faulty equipment, failing to report incident promptly and failing to report unsafe equipment. Respondent claimed applicant breached health and safety policy by failing to report near miss incident within 24 hours. Health and safety policy defined circumstances requiring report as including any serious potential incident and included by way of example fire. Following disciplinary meeting applicant dismissed. Respondent claimed applicant’s omission characteristic of health and safety issues at applicant’s branch.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Likely applicant did not inform A of incident as applicant did not claim had reported incident until Authority’s investigation meeting. Applicant failed to perform obligations under EA. Applicant required to report incident under health and safety policy as fact machine caught fire and conceivable occupant could have fallen from height meant serious potential incident. Even if applicant informed A of incident, report occurred one week later and outside 24 hour period contained in health and safety policy. Respondent unable to rely on ‘slack’ health and safety culture at applicant’s branch as did not put claims to applicant during disciplinary process. Respondent undertook proper process by conducting initial inquiry and commissioning full safety audit. Applicant attended disciplinary meeting with support person and appeared to have accepted wrongdoing but without offering any viable explanation. Applicant failed to undertake basic duty of branch manager to ensure safety of co-workers and clients. Dismissal justified. |
| Result | Application dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Health and Safety in Employment Act 1992 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Auckland_324.pdf [pdf 171 KB] |