An employee who worked as a cable maker has had his personal grievance claim for unjustified suspension and dismissal upheld by the Employment Relations Authority.

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 would 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.