Failure to provide a safe workplace

The Employment Relations Authority has upheld a personal grievance for unjustified disadvantage and unjustified dismissal following the medical retirement of a cereal food worker.

The employee had suffered an injury to his arm while lifting at work and was on a return to work programme.  The employer, however, decided to dismiss for medical incapacity.

The ERA held that the employer’s mind was made up to dismiss for incapacity before it met with the employee and he was not given a proper opportunity to comment.  Interestingly the ERA found that the notes made by the employer of the meetings did not properly record what had taken place at the meetings and had been drafted up sometime later.  The employee was therefore unjustifiably dismissed and there was an order for lost wages of $11,000 plus $25,000 compensation for the hurt and humiliation suffered by this long term worker upon his dismissal.

In relation to the claim of an unjustified disadvantage because of an unsafe place of work the ERA found that there was a health and safety manual regarding training on heavy lifting but that there was no proof that that training had been provided to the employee.  The failure to provide training on heavy lifting meant that the employer had failed to provide a safe work place.  In addition to the finding of unjustified disadvantage the ERA also held that a copy of the decision should be sent to WorkSafe in relation to the employer’s failures.  This may in due course also result in a prosecution of the employer.

If your health and safety manual provides for certain things to be done to prevent injuries, then it is vital that those things are done and that training is provided to every employee on all aspects covered by the health and safety manual.  A failure to comply with your own manual is going to be fairly fatal to any defence to a claim of failing to provide a safe workplace.

Alan Knowsley
Employment Lawyer
Wellington