Nathan v Broadspectrum NZ Ltd (Formerly Transfield Services NZ Ltd)
This long running case encapsulates many employer’s dilemma – do they put safety provisions above employment entitlements? Most of us would go for safety every time, not only are the potential outcomes for the employee drastic, but the employer can end up in prison if they get it wrong.
Mr Nathan was a registered lines mechanic and acting team leader with Transfield, in Wellington, looking after the power supply and services to the cable car. In June 2013 his team was called out to deal with an electrical wire damaged in a storm. While the wire was being reconnected it arced, indicating it was still carrying current. An investigation was done and it was concluded that Nathan had not followed the required safety procedures with the team. He was dismissed and raised a personal grievance.
The matter went to the Employment Authority in December 2015. The employer took along the CEO and a senior manager from Wellington Cable Car Limited, who said that on the basis of the report they had seen, they wouldn’t have Nathan back on their site. Shortly afterwards, it became apparent that the managers had seen a draft report that had some small but significant differences from the final, which had removed conclusions of recklessness in his behaviour, carving a huge hole in the employer’s defence.
The employer back-tracked and offered to settle the matter by reinstating Nathan to a “no less advantageous position” and meeting all the rest of his demands. Nathan was to resume work on 1 February 2016, but he wasn’t happy that he was assigned to a role in Upper Hutt and not his previous role and let it be known he was returning to the old depot.
The day he was due to return Broadspectrum sought urgent direction from the Employment Relations Authority as to whether he should return to the old depot or Upper Hutt. The decision was for him to return to Upper Hutt. Nathan was not happy with this decision and challenged it to the Employment Court. Meanwhile he took up the job in Upper Hutt and was dismissed because he had an injured knee and couldn’t do the work, so never took up the role. (This dismissal wasn’t challenged.)
The Court concluded that Nathan was entitled to return to the original role, even though the client would not have him on the site. This was heard in May 2016 and the decision was announced in October. Nathan was to go through retraining over the two weeks following the decision and be back on site after 14 days.
Despite this ruling, in July 2017 he was still not back on the job, but was going through ‘retraining’ at the depot. Nathan took a further case to the Employment Court seeking compliance with the earlier judgement, that the employer was required to return him to his previous role.
The Court swept aside the health and safety concerns and agreed with Nathan that the employer was in breach of the order. Broadspectrum was fined $10,000 for contempt of court and ordered to pay half of it to Nathan.
The employer was stuck between a rock and a hard place. The client refused to have him back on site and Nathan, with the Court’s backing, refused to work anywhere else. Unfortunately, parking Nathan with an undefined number of training modules to complete, some of which were relevant and others not, and no timeframe or guidance to support him in his return to work was not the best way of handling the situation. There was an obligation to be more proactive in getting him back on track and satisfying the client that he was competent.
This has cost the employer a fortune. They have effectively had an employee on pay since mid-2013 and doing no meaningful work, plus four substantive hearings and $25,000 in penalties and compensation.
Just like with safety, prevention is the best cure. If you have staff who go regularly onto client properties, it might be prudent to include in the grounds for dismissal, being blocked from going onto client property, but like any dismissal, it needs to be done fairly and in good faith. The employer also needed to adopt a more constructive strategy to resolve the situation, which is much easier said than done when you have intransigent and a litigious worker like Nathan to deal with.