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Workplace safety reform a milestone

THE DOMINION POST - TUESDAY, 20 AUGUST 2013


It has been an eventful couple of weeks in the world of employment relations. We have seen significant safety legislative reforms unveiled as well as some colourful disputes expose human frailty.

The most important development is, of course, the proposed changes to health and safety law recently announced by Labour Minister Simon Bridges.

Readers have witnessed the continuing anguish suffered by families of the Pike River miners who perished during the tragic events of November 2010. The positive legacy of the tragedy, though, is the changing face of health and safety in New Zealand.

New Zealand rates badly with too many workplace deaths. Since the Pike River disaster, we have seen a royal commission and an independent taskforce recommend a safer future, and Bridges has done a good job of acting swiftly. The Government will implement a vastly improved health and safety framework. The creation of Worksafe, a new health and safety regulator and enforcer, should make a huge difference. Safety mechanisms will be better enforced and penalties for perpetrators of dangers are significantly increased.

Meanwhile, readers' intimate Facebook secrets may now be at risk of being revealed to their employer. The Employment Relations Authority required an employee to hand over Facebook pages and bank accounts to her employer.

Gina Kensington was dismissed from her position at Air New Zealand as a flight attendant after taking sick leave in March this year. She claims she took the leave to look after her sick sister. She has brought a claim against Air New Zealand for unjustified dismissal.

In response, Air New Zealand sought an order requiring Kensington to provide bank account details and copies of her personal Facebook pages from the days when the leave was taken. It got it.

The authority decided the evidence was necessary for the "veracity" of Kensington's claim to be tested.

Facebook information has been used by employers in the past where by luck they saw it - the plight of Bruce Taiapa who used sick leave to attend a waka ama championship is perhaps the most well-known recent example. However, I'm not aware of any other case where the employee has been required to actively provide information from Facebook to their employer. Kensington's right to privacy versus the company's search for the truth and economic protection may ultimately be decided by the Court of Appeal.

It would be remiss not to mention Tim Armstrong, chief executive of United States media giant AOL, who wins the prize for the most public shaming of an employee while also demeaning himself. While on a conference call with 1000-plus AOL employees, Armstrong lost his cool at Abel Lenz, a creative director, for taking his picture. In an audio recording that has gone viral on the internet, Armstrong is heard saying "Abel, put that camera down right now. Abel! You're fired. Out!" Five seconds later, Armstrong carried on with the call as if nothing had happened.

Armstrong has since apologised to AOL employees as well as Lenz for the outburst. However, he has stated that he will not be reinstating Lenz to his former position. A New Zealand court would have him reaching for his wallet.

A close second has to be the uncouth behaviour of Gary Cross, managing director of Timaru engineering company Wallace & Cooper.

It seems that when one of Cross's employees, James Irvine, queried why he had not been paid, Cross informed him that it was because he had not filled in his timesheets. Irvine said he had never filled in timesheets in his 25 years with the business. Cross replied: "You are a piece of s... and you do exactly what I tell you. If I tell you to s... in a corner, you s... in a f...... corner".

Irvine subsequently tendered his resignation as a result of Cross's outburst but that was not the end, it seems. Cross declared in front of staff that "[Irvine] is an a.......". He also repeatedly called Irvine a "f...... sniveller" while arguing with him about a company phone that Irvine had not returned.

Irvine brought a claim against his former employer in the Employment Relations Authority alleging that he was constructively dismissed. Cross disputed Irvine's allegations, but the authority sided with Irvine.

Cross challenged the authority's decision in the Employment Court. He was unsuccessful. As a result of Cross's conduct, including poor post-employment behaviour, Irvine was awarded $15,000 for humiliation, loss of dignity and injury to his feelings. He also received $80,000 as reimbursement for lost remuneration. So treating the worker poorly after dismissal counts.

The past fortnight has given us everything from the wise minister to the angry executives and the lifting of the Facebook veil. Although less colourful, minister Simon Bridges' decision is by far the most important.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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