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 reinstatement.

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 management's attention.

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 serious injury.

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' approach.

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