| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 140 |
| Hearing date | 10-11 Feb 2014 |
| Determination date | 11 April 2014 |
| Member | T G Tetitaha |
| Representation | A N McInally ; P A Caisley, J Greenleaf |
| Location | Whangarei |
| Parties | Nelley v Top Energy Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Applicant electrocuted when came into contact with live power line - Hospital - Whether applicant led to believe line de-energised by work pressure, inadequate tailgate meetings, inconsistent practice in signing access permits, sets of earths remaining when should have been removed, uncertain afternoon shutdown times and employee behaviour - Whether disparity of treatment - Whether applicant's responses considered genuinely - Line mechanic |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: While consistency highly desirable in safety matters, safety not just another ingredient in mix where safety genuinely involved in employer's operations. Primacy of safety feature of collective employment agreement and respondent's policies. Applicant did not sign access permit confirming safe to work in area or attend hazard identification meeting. Applicant did not sight both sets of earths or maintain minimum approach distance. Applicant not relieved of personal safety responsibilities because believed another employee working. Little evidence of work pressure. Applicant's training, knowledge and experience should have reinforced that applicant could not ignore or neglect to follow safety procedures. Respondent needed to be confident applicant would not be guilty of such lapses given hazardous nature of industry. Fair and reasonable employer could have concluded applicant's conduct misconduct justifying dismissal. Earths, hazard identification meeting and access permit raised and discussed during interviews. Prima facie disparity of treatment between applicant and supervisor (H") as both accessed network prior to signing access permit and H received final written warning only. Disparity explained by fact H had followed other safety procedures before starting work. Even if explanation inadequate, applicant's failure to adhere to well-known policies and procedures serious misconduct justifying dismissal. Dismissal justified." |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(5) |
| Cases Cited | Air New Zealand Ltd v Samu [1994] 1 ERNZ 93;Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;Samu v Air New Zealand Ltd [1995] 1 ERNZ 636;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 ; [2001] 3 NZLR 29 |
| Number of Pages | 10 |
| PDF File Link: | 2014_NZERA_Auckland_140.pdf [pdf 240 KB] |