28.03.2018

Shaking it up at Fonterra

Who knew that Fonterra employees were such dedicated followers of internet trends? The dairy giant has once again found itself embroiled in employment litigation over a social media craze. Back in 2011, it was the dismissal of a supervisor for taking photos of others planking. Now, the latest issue to hit the media has been the dismissal (and subsequent interim reinstatement) of two employees fired by Fonterra after the company found two videos uploaded to YouTube.
In the videos, (which you can see for yourself here if you have a tolerance for bad dance) a number of employees (including the two applicants, Mr Taufua and Mr Flynn) are seen doing their version of the ‘Harlem Shake’, a popular internet dance/skit. The video shows Fonterra employees dancing around, in the workplace, making use of various equipment including a hose and a shovel. In parts of the video, employees are seen not wearing protective equipment such as hair nets, safety glasses, workboots and ear muffs. Mr Taufua is seen riding a paper trolley while others throw objects at him, an employee is seen hanging from a pipe 2.5m from the ground, and another employee appears to be hanging from the roof. The always humorous ‘robot’ moves also make an appearance. Better work stories at Fonterra, you might think.
Fonterra, however, failed to see the humour in the situation, and dismissed three of the six employees involved, including Mr Taufua and Mr Flynn. These two employees raised personal grievances alleging that they were unjustifiably dismissed. They sought interim reinstatement, pending the hearing of their substantive grievances.
The company alleged that the two videos showed health and safety breaches which constituted serious misconduct. Both Mr Taufua and Mr Flynn were dismissed for their own allegedly unsafe acts, inappropriate use of equipment, and for failing to report or prevent the unsafe acts of others.
In a decision released on 7 June, the Employment Relations Authority found that the two employees had an arguable case that their dismissals were unjustified, and awarded interim reinstatement. This means that the employees are allowed to return to work until the Authority can hear the question of whether they were, at law, unjustifiably dismissed.
The Authority looked at Fonterra’s policies on serious and less serious misconduct, and found that it was at least arguable that the employees’ actions did not constitute the serious misconduct alleged by Fonterra, noting that:
“There is no evidence of accident, injury or damage to property. At best there is an allegation of the potential for damage, injury or accident. Whether the applicants’ actions endangered the health, safety and/or wellbeing of employees as contemplated by the collective agreement and discipline and dismissal policy is disputed. This is a matter for determination at substantive hearing. None of the employees knew what they were going to do in advance. Everyone did their own thing. It is arguable the behaviour may be less than wilful or deliberate action as a consequence”.

It also found that there was an arguable case for reinstatement following a substantive hearing, even though reinstatement is no longer the primary remedy for personal grievances. The balance of convenience favoured the interim reinstatement as the employees were the main earners in their households and gave evidence of financial hardship. Finally, the Authority considered that the ‘overall justice’ of the situation favoured the employees being reinstated in the interim, and noted that if the employer had concerns about them being physically back in the workplace, these concerns could be met by allowing the employees to take garden leave (that is, paying the employees but not requiring them to work).

In our view
Obviously, this is an interim decision only, and there were a great many conflicts of evidence which will need to be resolved at the substantive hearing. Perhaps one thing to take from this though (other than the humour inherent in reading the Authority’s descriptions of dance moves) is that breaching health and safety obligations does not provide a ‘get out of jail free’ card for employers to dismiss. It is clear that the Authority will look behind a glib allegation of breach, and assess whether in fact the employee breached their obligations, and, if so, whether the actions actually amounted to serious misconduct. There is no doubt that employees putting themselves or others at risk in the workplace is potentially a matter of serious misconduct. However, the facts and the evidence need to stack up. Sweeping allegations or overreactions could result in a dismissal being found to be unjustified.

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