Company holds back asbestos results

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A company that failed to inform its employees about their possible exposure to asbestos has been found to have constructively dismissed two of them.

The two industrial abseilers were using the roof of a building as an access way to get to their worksite at a time when their employer – Exterior Building Care Goleman Ltd – had received results of tests indicating that the roof tested positive for asbestos. The employees were not told of the results until ten working days after the test results had come in. The two workers claimed that the company failed in its obligation to provide them with a safe workplace and to minimise their exposure to asbestos.

With other employees they went to The Press about their concerns and an article appeared in the paper. This led to the two workers being called to a disciplinary meeting. The possibility was raised that they may resign because of their concerns about whether they could trust their employer. However, the company wrote to them inviting them to return to work.

After this the company began to treat one of the employees as a casual staff member when he was in fact a permanent employee. He alleged that he was told there was no more work for him because of his bad attitude and, as he was a foreign worker, he had no right to protest. The other worker alleged he was singled out because he had raised concerns about the asbestos and was told to look for another job.

The claim for constructive dismissal was based on what they alleged was a breach of duty by their employer. They said they decided to resign because they had suffered significant breaches of the obligation to keep them safe at work and saw no indication from the employer that this was acknowledged.

The Employment Relations Authority found that the company failed to take reasonable steps to minimise or avoid the risk of exposure of their workers to asbestos, and thus failed to ensure those workers had a safe and healthy workplace. The company had continued to maintain that it had notified the workers early about asbestos being found, but the Authority found this was not the case (ERA, Christchurch, 22 September 2015).

The Authority determined that there were serious breaches of the employment agreements and these were serious enough to make the employees’ resignations reasonably foreseeable. The two workers were awarded $9000 each, plus lost wages. The company was not ordered to pay a penalty for the breach of good faith because the Authority could not be certain if the breach was deliberate or not.

Source: Alert24 16/10/15, www.safeguard.co.nz