Man fired for failing to wear steel capped boots wins 9.6k for unfair dismissal

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The Employment Relations Authority (ERA) found Wallboard and Insulation Supplies NZ (WIS) unjustifiably dismissed Lefiu Matthew Naoupu, known as Matty.

The authority ordered the company to pay Naoupu 9.6k in compensation, plus three months’ wages, minus 20 per cent, after his September 2016 dismissal.

Naoupu was fired, according to a letter sent by the company, for three separate health and safety breachs, each of which involved not wearing safety capped boots on Mike Greer Homes construction sites. One involved not wearing high-visibility clothing. WIS contracted to Mike Greer Homes.

“You are dismissed because you knowingly continued to work on construction sites, installing insulation without adequate Personal Protective Equipment (PPE),” the letter said.

Employers are required to provide PPE under health and safety at work regulations, something the ERA found WIS failed to do, while simultaneously blaming Naoupu.

“It troubles me that WIS has put all the blame for Mr Naoupu’s lack of new safety footwear on Mr Naoupu when it also had health and safety obligations to provide adequate PPE for him,” the determination said.

When he started, Naoupu was provided other PPE including a high-visibility vest and a hard hat. He already had steel-capped boots, but informed WIS sometime in 2016 he needed new ones.

Naoupu was told, accounts differ on how many times, to go to workwear store NZ Safety to get these. WIS allowed employees to charge the cost of steel-capped safety shoes, up to $70, to its account.

The cheapest pair of shoes at the store cost $77.05. Naoupu told the ERA he went at least once, but found the cheap shoes, which WIS attested were all installers needed, unsuitable.

Because of injuries to his ankle, Naoupu and his physiotherapist claimed he needed boots, not shoes. He later explained he did not buy new footwear because he could not afford the difference from $70 for the boots he needed.

In August 2016, he underwent a health and safety induction to work on Mike Greer Homes sites, which stated high-viz and steel capped footwear were mandatory.

Naoupu worked on at least three occasions on sites managed by the building company. On all three occasions, he says, he wore his worn safety shoes, which were held together by tape with one of the steel caps missing.

A project manager for Mike Greer Homes wrote to WIS to complain about Naoupu’s lack of PPE.

“Goes without saying that these days it is compulsory to have these items on at all times. It needs to be sorted ASAP it is not a good look for us or your company especially on Southern [Response] jobs.”

A disciplinary meeting was called, which Naoupu agreed to attend on September 21, 2016.

At the meeting Naoupu’s supervisor,​ Joe Andrews, told him companies were vigilant about health and safety to protect employees and because there are “hefty fines for. . . failures”.

Notes from the meeting show Andrews told Naoupu “Mike Greer Homes are 95 per cent of our business” and “[t]he Health and Safety breaches have consequences that have impacted the company”.

The notes showed Andrews asked Naoupu if he told WIS he could not afford new boots and that Naoupu said he had not – something he later denied.

In her determination, ERA member Christine Hickey said: “I do not consider an employer who fails in its own legal obligations to ensure a worker’s safety could ignore its part in the health and safety breaches”.

OBLIGATIONS ‘BLACK AND WHITE’

Site Safe southern regional manager Dave McBeth, speaking generally, said the Health and Safety at Work Act was “black and white” on the obligation of employers to provide PPE.

“The employer has to provide it, and if they’re not providing enough money then actually they’re probably not meeting their obligations,” he said.

McBeth said companies usually provided credit for safety footwear or did the procurement themselves after asking for shoe sizes.

“The company has to provide the appropriate PPE relative for the job that’s being done, or the risks involved.”

 

Source: Stuff