Changing Dangerous Work Practices - Grounds for Dismissal?

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Health and Safety At Work Act
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Changing Dangerous Work Practices – Grounds for Dismissal?
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How not to employ a nanny from start to finish
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Poor Performance and Misconduct
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Hiring new employees
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How to discipline employees
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Redundancy
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Dismissal
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Personal grievance claims

Changing Dangerous Work Practices – Grounds for Dismissal?

How far can employees go when they disagree with their employer on a health and safety issue?  The right to refuse to perform work likely to cause serious harm is guaranteed by s 28A Health and Safety in Employment Act. But what about customising work practices?

Earlier this year in Moukharris v Northland Waste Limited the Employment Relations Authority considered whether an employer dismissing an employee in such circumstances was justifiable.

Mr Moukharris was a refuse removal driver employed by Northland Waste Limited.  On 20 January 2012 Mr Moukharris had been carrying out his usual rubbish collection routes. Due to the steepness of a street on his route, Mr Moukharris decided to collect the refuse in the street by only travelling downhill crossing the centre line from time to time in order to collect the rubbish from both sides of the street; “double-siding” as it is known in the industry.  Mr Moukharris used his hazard lights, but crossing the centre line meant that he was at times travelling downhill directly into the path of oncoming traffic. Unfortunately for Mr Moukharris, a manager from Northland Waste happened to view the collection that day.  Mr Moukharris was suspended pending a meeting, after which his employment was terminated.

Safety concerns 

Mr Moukharris had taken the view that the process he adopted was safer for his runners at the back of the truck, as he had been anxious about the state of the booster on his truck’s clutch. The clutch had been having some problems and there was a risk that when going up a steep hill he may miss the gear change and the vehicle would potentially roll backwards.

Northland Waste had specifically banned double-siding in its health and safety policy as it considered it to be unsafe.  This ban was subject to specified exceptions recommended by drivers and pre-approved by management as being in the interest of the health and safety of the company’s employees.

Justifiable dismissal

The ERA was satisfied that the dismissal of Mr Moukharris was justifiable. The Authority specifically said “While there may be some infelicities in the procedures adopted by Northland Waste, there [sic] earnest commitment to health and safety principles and their refusal to deviate from the very sensible basis on which they have developed the policy on double siding, is to their great credit. This is an example of a small company developing a health and safety regime with the active participation of the people it is designed principally to protect and then implementing that procedure as company policy.”

The ERA did not disagree that Mr Moukharris had been acting with good intentions. However, the company policy had been designed to protect the employees. Mr Moukharris knew of the rules and could have applied to management to make the street concerned an exempted area.  The ERA noted that if he was particularly concerned on that day he could have telephoned Northland Waste before proceeding in order to get temporary exemption.

In respect of the problems with the clutch (being the reasoning behind Mr Moukharris undertaking the double siding), evidence had been presented by Commercial Diesel Limited that the employer had ordered a replacement part which was due to be installed several weeks later.  The diesel company had not viewed the clutch as a safety concern, and if they had, would have advised Northland Waste to take the truck off the road.  Based on the condition of the truck when it left Commercial Diesel, it would have been safe to drive both uphill and downhill.

A further complaint from Mr Moukharris focused on the disabled safety system at the back of the truck.  Northland Waste had modified the truck by adding a second button for runners to push if they wanted to operate the rear machinery.  The goal was to ensure that the runner would not have any hands in the machinery when it started because both would be required to press the buttons.  However, employees had figured out how to disable the second safety switch with a stick. Northland Waste Management had observed Mr Moukharris driving his truck while this safety system was disabled.

The disabled safety system was a further allegation faced by Mr Moukharris at his disciplinary meeting.  He denied responsibility for what was happening at the back of the truck, saying it was not within his control.  The Authority noted that as the driver, Mr Moukharris was responsible for the safety of the vehicle and the associated staff.  Northland Waste found that this was a second breach of the company’s health and safety policy and the Authority did not disagree.

The Authority found that, as Mr Moukharris was given a proper opportunity to be heard and all the correct disciplinary procedures were followed by Northland Waste, the dismissal was justifiable.

This case is a good example of an employer implementing a health and safety policy and enforcing it.  It also provides a warning for any employee who plans to deviate from such a policy, no matter how well intentioned they may be.

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