Remember those two Fonterra employees who were sacked for doing
the 'Harlem Shake' at work? The Employment Relations
Authority subsequently stepped in, ordering their interim
This case raises several interesting questions about health and
safety attitudes in New Zealand, and obligations of fairness to
employees when reaching a decision to dismiss.
The Fonterra employees were reportedly dismissed for serious
misconduct on the grounds of breaches of health and safety
obligations. This followed a YouTube clip of them doing the Harlem
Shake at Fonterra's Takanini plant, which came to
So, is Fonterra's approach: 'compliance gone mad';
or an acceptable response to a serious issue?
What is so wrong with a bit of 'Harlem Shaking' in the
workplace? This internet meme (similar to last year's
'Gangnam Style') involves a short video clip starting with
one person dancing to a song called the 'Harlem Shake',
then cutting to a group of people convulsively dancing to the same
song. The more novel locations tend to get higher numbers of
YouTube hits, hence the attraction of filming a clip in unusual
places – like workplaces.
In reaching its decision to reinstate the employees (on an
interim basis), the ERA reportedly highlighted that the employees
concerned were on a break, were wearing PPE (personal protective
equipment), and appeared to have cleaned up the water on the floor
before any dancing took place. So, in the ERA's view, the
employees' conduct did not necessarily have the potential for
That said - in the midst of the likely overhaul of health and
safety legislation in New Zealand, and criticism by the Government
appointed independent taskforce of that Kiwi attitudes to health
and safety are too laid-back – perhaps Fonterra should be
hailed for its 'pioneering' approach?
Indeed, given that we are likely to adopt the Australian model
on health and safety law, it is of note that Fonterra's
decision to sack the Harlem Shakers mirrors the approach taken by
Australian gold mine company – Barminco - earlier this year.
Barminco dismissed up to 15 miners for their involvement in a
Harlem Shake video filmed underground in its gold mine in Western
Australia. The workers were dismissed on the basis that the video
breached Barminco's core values of "safety, integrity and
excellence" with safety being said to take an
"unconditional priority in Barminco at all times". This
was in spite of reported claims that the workers were complying
with OSH regulations and wearing PPE at the time.
In New Zealand, under current legislation, employers have a duty
to take all reasonable steps to ensure the safety of employees and
to prevent harm. But there is, of course, also a duty to have a
fair reason to dismiss an employee, and for the decision to dismiss
to be reasonable.
What is reasonable depends on whether the decision is one which
a reasonable employer could have made – the so called
"range of reasonable responses" test. But where does this
range of reasonable responses lie when it comes to health and
safety issues? The answer will, of course, depend on the priority
given to health and safety concerns by employers.
If the taskforce's view of current Kiwi attitudes to health
and safety is accurate, a decision to dismiss an employee for
horseplay at work may well be seen as unreasonable - given our
stated national 'high tolerance for risk' and failure to
place adequate importance on health and safety.
It will be interesting, to see whether the (recommended) new
health and safety legislation will bring with it a shift in
attitudes, moving that 'range of reasonable responses' away
from accepted horseplay and more towards a 'zero-tolerance'
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).