Arthur (Hata) Kaipara v Carter Holt Harvey Ltd

• Jurisdiction: New Zealand
• Judge: GL COLGAN
• Judgment Date: 05 March 2012
• Court: Employment Court
• Docket Number: ARC 45/11
• Date: 05 March 2012

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

[2012] NZEmpC 40

Judge Colgan

ARC 45/11

IN THE EMPLOYMENT COURT AUCKLAND

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.

Appearances:

Stan Austin, advocate for plaintiff

Daniel Erickson and Mere King, counsel for defendant

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 to clear a timber jam.

• • Your failure to comply with the Company and Kawerau Site lock out/isolation policy and procedures.

• • You allowed your direct reports to put themselves at risk by failing to ensure they applied their own personal lockout tag to the equipment whilst clearing the timber jam up.

…

The legal tests

12 The test for determining justification for both Mr Kaipara's suspension and his subsequent dismissal is that which was, at the time, set out in s 103A of the Employment Relations Act 2000 It is not the current s 103A test which has only been in operation since April 2011.

13 CHH must satisfy the Court that both the suspension, which is accepted as a disadvantageous action, and the dismissal were what a fair and reasonable employer would have done in all the relevant circumstances at the time and that the way in which CHH went about those actions were how a fair and reasonable employer in all the circumstances at the time would have done so.

The Authority's determination

14 The Authority decided, for reasons given in its written determination of 23 May 2011, that CHH suspended Mr Kaipara justifiably. It said that removing him from the workplace ensured no further health and safety incidents occurred during the company's investigation and that it was fair and reasonable for the employer in all the circumstances to have done that.

15 As to the justification for Mr Kaipara's dismissal, the Authority noted that the essential facts of what occurred in January 2010 had always been conceded by Mr Kaipara and that his challenges to the justification for his dismissal were aimed at procedural elements allegedly not addressed by the company or at least inadequately addressed. In particular, Mr Kaipara said that CHH's decision to dismiss him was determined before it had concluded its investigations, that it failed to provide him with documentary information upon which it relied in dismissing him, and that the company's Regional Manager, Arnie Federink, was involved in the decision to dismiss Mr Kaipara but had not provided him with an opportunity to be heard.

16 The Authority rejected the allegations of predetermination. As to the lack of disclosure of documents, the Authority concluded that this would not have made a difference because Mr Kaipara admitted the failings upon which the company relied in justification for its dismissal of him. Addressing Mr Federink's role, the Authority concluded that he was not so involved in the decision to dismiss that fairness required that Mr Kaipara should have had a chance to persuade Mr Federink personally not to dismiss him. It concluded that the dismissal decision was that of Mr Trow who had been involved in all relevant interviews with Mr Kaipara. The Authority determined that Mr Kaipara was dismissed justifiably.

Particular grounds of challenge

17 Mr Kaipara asserts generally...