Kupa v Silver fern Farms Beef Limited

Employers have been running scared of the new health and safety legislation for a couple of years now but this decision from the Employment Court shows that they are caught between a rock and a hard place as the disciplinary action was seen to be too severe.

Silver Fern Farms (SFF) owns a number of meat works throughout the country. Ten percent of their workplace injuries are head injuries, so they looked for solutions to the problem and introduced “bump hats” these are not as effective as hard hats but will provide protection against light bumps and cuts.

Mr Kupa had worked for SFF and its predecessor for 26 years and had an unblemished employment history. He was a union delegate, and therefore seen to be a leader amongst the workers. The part of the plant where Kupa worked was a very hot environment, particularly in summer, and there were challenges with ventilation. Kupa and some of the workers believed that the requirement to wear the bump hats could lead to excessive head heat and therefore created a risk of harm from over-heating. The issue had been raised with the health and safety committee and there were a number of options being explored to reduce the possibility of over-heating, but none of them were able to be immediately implemented.

The rules were clear – All [personal protective equipment] gear must be worn unless instructed otherwise by management, that is including bump/hard hats.

It is a health and safety requirement.

If [you’re] struggling with the heat, talk to your supervisor.

The agreement was, that if someone was having trouble with the heat, their supervisor could permit them to remove their bump hat.

Kupa repeatedly pushed the boundaries on the issue. Early one morning he was spoken to by a manager about not wearing his hat, and he said it was too hot to wear it, but in fact, the hat was still in his locker, indicating he had no intention of wearing it. He was told that if he didn’t follow the rules he could lose his job.

Ten days later, the team were told that there would be a site visit from a number of managers and all staff were to keep their bump hats on until at least smoko. At around 8:40am Kupa removed his hat. He said he did it with the permission of his supervisor and they could take their hats off after the managers had left. The supervisor said he had not given permission for the hat to be removed and had asked Kupa to put it back on but he had refused.

Kupa was suspended and the incident was investigated. The union argued that there was a double standard and that there were times when the staff were required to wear the hats and others when they weren’t, identifying the real issue was whether it was appropriate for workers to be required to wear headgear if it was causing discomfort, ill health or was a potential safety problem. Kupa was eventually dismissed for serious misconduct and took a personal grievance.

The Employment Authority upheld the dismissal as justified and Kupa took it to the Employment Court. The Judge preferred the supervisor’s version of events rather than Kupa’s and found that the investigation process had been fair, and that the original instruction to wear the hat had been reasonable.

However, he thought that the decision to dismiss was excessive. Part of the reason for this is that the employment agreement had a clause that stated that “suspension of up to six months shall be the preferred disciplinary option to dismissal”.

The manager admitted that the real issue was Kupa’s failure to do as he was told” and that he had deliberately misled the manager when his hat had been left in the locker at the prior incident. These issues should have explicitly been put to Kupa to respond to before the decision was made to dismiss him.

The employer was ordered to reinstate Kupa and pay him 3 months wages and $7,000 hurt and humiliation. These were the remedies after they had been reduced for his contribution, which was judged to be at 50 percent.

I hope SFF takes this decision to the Court of Appeal. Kupa was repeatedly flouting the rules and was inciting other staff to do the same. The judgement hinged on minor procedural matters that the union hammered and not the overall context. Employers have to be able to take a stand on health and safety matters above procedural details.