The recent case of Craig Flynn v Fonterra Brands (New Zealand)
Limited  NZERA Auckland has highlighted the need for
employers to be cautious when using breaches of Health and Safety
as a reason for summarily dismissing an employee.
The case illustrates that Employers would be wise to consider
whether the behaviours do in fact come under other disciplinary
grounds which would make for a stronger case.
In Craig Flynn, Mr Flynn, along with other employees,
made two videos of their own version of the "Harlem
Shake", on work premises during work hours. In the first
video, Mr Flynn was dancing around a pallet with a plastic shovel
between his legs. In the second, Mr Flynn was hosing water into a
chemical footbath, letting it overflow which caused water to pool
on the ground around the footbath. Mr Flynn is then seen dancing
next to the footbath, the water had drained away but the ground was
Fonterra believed Mr Flynn's actions in the videos were
unsafe, and could have caused injury to himself or others (by Mr
Flynn tripping over while dancing or slipping on the wet floor).
Fonterra's decision to summarily dismiss Mr Flynn, based on a
breach of their Health and Safety policy and procedures, seemed
like viable grounds for dismissal.
However, as the Authority found, the evidence showed that
Fonterra really had no basis for using breach of Health and Safety
as grounds for dismissal.
Evidence showed that in fact the flooring around the footbath
was designed to be wet (because everyone was required to sanitise
their footwear in the footbath before entering the premise). As the
floor would inevitably get wet during this procedure, it was
specifically treated to allow extra grip in wet conditions, and was
designed so the surface water drained away. Furthermore, Mr Flynn
was wearing appropriate footwear for wet conditions.
With regards to Mr Flynn dancing with a plastic shovel between
his legs, the Authority found the risk of tripping was minimal and
that the evidence didn't support the conclusion that Mr
Flynn's actions endangered the other employees.
The Authority found overall that Mr Flynn's conduct did not
endanger the health or safety of himself or others as Fonterra had
Fonterra also tried to argue that Mr Flynn was inappropriately
using the protective clothing he was wearing due to the fact he was
wearing them while dancing. It does not follow that just by wearing
the protective clothing during the video he was using them
inappropriately. It was illogical for Fonterra to argue this as
protective clothing had to be worn at all times while on the
premise regardless of what a person was doing.
It was accepted Mr Flynn's actions were
"horseplay" but in the circumstances the actions did not
amount to a breach of Fonterra's Health and Safety policy and
Fonterra conceded they did not consider breaches of other
policies as grounds for dismissal. The Authority found the conduct
of Mr Flynn actually fell within their discipline and dismissal
policy, specifically the misuse or unauthorised use of Fonterra
property or time.
Another angle that Fonterra arguably could have considered is
the social media aspect - that Fonterra's reputation was
brought into disrepute by the videos being broadcast on
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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).
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