Arthur (Hata) Kaipara v Carter Holt Harvey Ltd

 
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[2012] NZEmpC 40

IN THE EMPLOYMENT COURT AUCKLAND

Judge Colgan

ARC 45/11

In The Matter Of a challenge to a determination of the Employment Relations Authority

Between
Arthur (Hata) Kaipara
Plaintiff
and
Carter Holt Harvey Limited
Defendant
Appearances:

Stan Austin, advocate for plaintiff

Daniel Erickson and Mere King, counsel for defendant

Challenge from Employment Relations Authority determination — plaintiff (“P”) had been long-term employee of timber and wood products mill defendant (“D”) — as shift supervisor for last seven years P had attended an annual health and safety start-up/re-introduction training course at which he signed off confirmation that all employees and contractors under his direction had demonstrated they understood the correct machinery isolation procedures (“MIP”) — eight days later MIP process not followed by P or any other staff involved in incident — P initially put on paid suspension and then dismissed following further investigation — whether P was disadvantaged unjustifiably in, and/or dismissed unjustifiably from, his employment.

At issue was whether K was disadvantaged unjustifiably in, and/or dismissed unjustifiably from, his employment.

Held: The additional supervisory responsibilities for the health and safety of other employees differentiated K's circumstances from that of the other employees involved who were not dismissed. This justified a disparity of treatment by CHH. The implementation by CHH of a new attitude to safety enforcement shortly before the incident was not an accepted ground for disparity. The new standards, and determination of CHH to enforce the standards had been made clear to all staff including K.

Fair and reasonable procedures were a statutory requirement of justified dismissal. CHH had not provided K with copies of several documents prepared in the course of the investigation. This constituted a breach of CHH's obligation of good faith pursuant to s4(1A)(c) Employment Relations Act 2000 (“ERAct”) (parties to employment relationship to deal with each other in good faith) but did not mean that K's suspension and/or dismissal was unjustified. K was unable to point to any content in the relevant documents that would have put him at a disadvantage by non-receipt.

K's suspension was disadvantageous to K in his employment but was nevertheless justified. K's employment permitted suspension to take place. K had failed to follow safety requirements and these failures had been a significant factor in another employee being injured in a preventable accident. K's suspension on full pay was the sensible and fair way to deal with the situation while CHH's investigations took place. CHH was not at fault in not advising K of possible disciplinary consequences and/or that he was entitled to representation at the first meeting following the incident. K was not disadvantaged by any failure to tell him, at the time of his suspension, that he might be liable to dismissal. It was accepted that K was misled by assurances that he should not be worried about the outcome but no actual disadvantage had been identified as his representative had argued strongly and appropriately for a sanction less than dismissal and CHH had clearly set out in its formal communications with K that dismissal might be the outcome of its disciplinary inquiry. Under s103A ERAct (test of justification) K's dismissal was what a fair and reasonable employer would have done in all the circumstances at the relevant time.

ERA determination set aside and this judgment to stand in its place (s183 ERAct, decision).

JUDGMENT OF CHIEF JUDGE GL COLGAN
1

The issues in this challenge from a determination 1 of the Employment Relations Authority are whether Arthur (Hata) Kaipara was disadvantaged unjustifiably in, and/or dismissed unjustifiably from, his employment with Carter Holt Harvey Limited (CHH). If Mr Kaipara has a personal grievance or grievances, the issues for decision include the remedies for these and costs.

2

Until his dismissal, Mr Kaipara had been a long-term employee at what is now CHH's timber and wood products mill at Kawerau although it was owned by other entities during his period of employment.

3

When saw mill machinery breaks down or is otherwise not operating normally, the process for ensuring that people are not injured or otherwise endangered whilst repairing or maintaining the machines involves physical

disablement of that machinery by padlocking of isolation switches. Each person working in a potentially dangerous area applies his or her individual padlocks. Integral to the effectiveness of this safety system is the requirement of staff to comply with procedures. Under no circumstances are they to use or rely on others? isolation equipment. Staff training also emphasises the uncompromising need to follow safe procedures on all occasions and makes it clear that a failure or refusal to do so may subject an offending employee to the company's disciplinary procedure which might, in some cases, result in the most serious sanction of dismissal.
4

Although Mr Kaipara had been employed at the mill since 1981 and had been a shift supervisor since 2003, he nevertheless attended an annual health and safety start-up/re-introduction training course on 11 January 2010 following the mill's shut- down over the Christmas/New Year period in 2009/2010. At the conclusion of his training, Mr Kaipara signed off, as supervisor, confirmation that all employees and contractors under his direction had demonstrated that they understood the correct machinery isolation procedures. He likewise acknowledged that he had himself retrained in these safety procedures.

5

A matter of a little over a week later, on 19 January 2010, a wood jam occurred in the milling machinery supervised by Mr Kaipara. Although two other employees applied their own single padlocks to isolating switches which nevertheless required two locks for each worker, Mr Kaipara failed to do so at all or to ensure that other persons working on the machines had their isolation locks correctly in place. Mr Kaipara supervised the clearing of the wood jam. This involved him and other employees under his supervision climbing into an area known as “the bird's nest” to clear wood. None of the three staff, including Mr Kaipara, followed the correct isolation procedures before climbing into the bird's nest. Mr Kaipara then instructed one of the two employees, who had used their isolation padlocks, to remove these to enable the machine to be re-started so as to enable jammed wood to be “jogged” free.

6

After the jam was removed, and although he and one of the other employees stood clear, Mr Kaipara gave the instruction for the line to be re-started while one employee (Uka Osooso) was still sitting on a cross-beam which was part of the machinery. The plaintiff did so without ensuring, by visual inspection, that all staff were clear of the machinery. After the machine had started up, Mr Osooso attempted to leave the bird's nest area through a small opening but his legs became jammed between moving timbers. The machine was then stopped immediately and he was freed after a short time. Mr Osooso was treated on site with first aid before being taken by ambulance for medical assessment and treatment. Fortunately, the injured employee suffered only minor contusions to his legs. There was, nevertheless, potential for a much more serious injury to Mr Osooso.

7

Mr Kaipara partially completed an incident report about these events in which he recorded that the incident could have been prevented by “communications and isolation”. The scene was “frozen” in the sense that everything was left for inspection in the condition in which it was immediately after Mr Osooso was extricated from the machinery.

8

At an initial investigation meeting (held only a few hours after the accident) at which Mr Kaipara was asked to explain to the saw mill's manager, Brett Vincent, and the site manager, Paul Trow, what had happened, Mr Kaipara admitted failing to comply with CHH's isolation procedures when clearing the birds? nest area. In particular, he accepted that he did not have any isolation in place. He also conceded that he had not communicated to others sufficiently about the situation.

9

After speaking with other employees about the incident, Messrs Trow and Vincent again met with Mr Kaipara to discuss whether he should be stood down from work pending an investigation into the incident. A decision was made to suspend him and this was confirmed to Mr Kaipara in writing on 21 January 2010.

10

In the course of his paid suspension, Mr Kaipara attended another meeting with CHH management (Mr Trow, Mr Vincent and Kay Mead, the company's health and safety manager) on 26 January 2010. He was accompanied by a support person. Further investigation was conducted at that meeting after which Mr Kaipara was requested to attend yet a further meeting with the company on 29 January 2010. Its concerns or allegations were set out in the letter calling the 29 January meeting and Mr Kaipara was advised expressly that his dismissal was a possible consequence and he was recommended to have a representative or support person with him.

11

Mr Kaipara was dismissed shortly after the conclusion of the meeting on 29 January 2010. The grounds for his dismissal were set out in a short letter to him dated 30 January 2010 and were as follows:

  • • Your failure to apply your personal lockout tag to mechanical equipment whilst you were working in an operational area...

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