A few high-profile safety breaches have put the rights of employers in the spotlight
In April, several members of the Crusaders Rugby team were caught flouting lockdown laws.
The players were seen training together at a park in Christchurch, an activity that Prime Minister Jacinda Ardern described as flying “directly in the advice that we’re giving”.
NZ Rugby chief executive Mark Robinson also weighed in, calling the breach “unacceptable”.
Despite the team being subject to disciplinary code, the players did not face any serious punishment.
But what the situation does highlight is the rights of an employer to take disciplinary action against an employee for breaching safety policies.
In fact, a serious breach of COVID safety policy can be grounds for dismissal, according to Hamish Kynaston, partner at Buddle Findlay.“
Under the Employment Relations Act, employers have to factor in all the circumstances before they decide whether it’s fair and reasonable to dismiss the employee,” Kynaston told HRD.
For instance, a breach of COVID-19 safety in an organization which is relatively low risk would be handled differently than one in which an outbreak is dangerous.
Similarly, employers have to consider whether or not they gave employees adequate health and safety training – or if it could be argued that staff weren’t properly briefed.
Read more: What are workers’ safety expectations during COVID-19?
All those circumstances are relevant to a decision and it may not be lawful to dismiss in that context.
However, Kynaston said it’s a different story if you are working in a hospital, rest home or a school, where there is high risk and the potential for serious harm.
“If the rules are clear and the employer has made it obvious that the rules are very important, then that could result in dismissal. Of course, the employer would have to process that’s required under the Employment Relations Act.”
Another high-profile breach of lockdown policy involved Health Minister David Clark, who was forced to apologise after he caught going for an afternoon mountain bike rideamid lockdown.
On this occasion, Ardern did not terminate Clark, stating “it is my expectation that minister set the standards we are asking New Zealanders to follow”.
"People can go outside to get fresh air and drive short distances if needed, but we have asked people to avoid activities where there is a higher risk of injury, and the minister should have followed that guidance."
Kynaston said the strict policies that have transpired in these unprecedented times have had some employers asking questions about whether it’s lawful to limit what employees can do outside their employment.
Read more: How to create a COVID safety recovery plan
“If you have a job in a hospital as a security guard, should you be working as a security guard two days a week in a managed isolation facility?” Kynaston asked.
“I think we will see dismissal cases relating to COVID-19 breaches coming up, particularly in areas where there is debate about the extent of the restrictions and the employer’s right to intervene.”
One of the areas where the courts and the Employment Relations Authority step in is health and safety.
“So, if an employer genuinely acted out of safety-based motives, and has a sound basis for dismissal, then I think it’s going to have to be difficult for employees to challenge that if they have broken the rules.”
