Worker dismissed for not wearing hard hat

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A meat processing worker was dismissed for serious misconduct because he refused to wear his hard hat and failed to follow a reasonable instruction of his employer to put the hat on.

The worker had previously told his employer that he did not want to wear the hat as it was too hot to wear. The company required that workers start each shift wearing their hats. The union advised that if a worker was struggling with the heat of wearing the hard hat, they were to discuss this with their supervisor and the matter would be entered into the medical register.

The worker was suspended for not wearing his hard hat and for refusing to do so when asked to by his supervisor. An investigation was carried out by the company and the worker was later dismissed.

The collective agreement provided that workers would be in breach of the agreement if they deliberately failed to wear PPE or failed to follow a reasonable instruction. The agreement also provided that misconduct such as failing to follow a reasonable instruction of a supervisor would normally incur a warning.

The worker argued in the Employment Relations Authority that he did not fail to follow a reasonable instruction to wear the hard hat as the instruction to do so was not reasonable. He also submitted that the company could not justify his dismissal because it had a double standard as it recognised that in some circumstances workers could not wear the hats because of the heat. He said the company did not give due consideration to his explanation for not wearing the hat.

The company held four investigation meetings into the matter and, at the end of the last one, decided there was a case to answer. It held a disciplinary meeting the following day where the worker was dismissed.

The Authority determined that as the suspension was not done in accordance with the collective agreement; however, as no claim was made in relation to it, the matter was not taken further.

The Authority also found that the company did genuinely consider the worker’s views in coming to its decision to dismiss him. The worker had been steadfast throughout the company’s investigation into the incident that he had been wearing his hard hat before being approached by the supervisor. However his lawyer conceded before the Authority that in fact he had not been wearing it at the time. The Authority preferred the evidence of the supervisor over that given by the worker. It said that the worker had removed his hat in defiance of company policy.

The Authority also held that the company had carried out a sufficient investigation and had genuinely considered the worker’s explanation. The company was been justified in concluding that the worker had deliberately failed to wear the hat, despite his claims to the contrary, and had also deliberately failed to follow an instruction reasonably issued to put it on.

The Authority held that the decision to dismiss the worker was one that a fair and reasonable employer could make and the personal grievance application was dismissed.

Kupa v Silver Fern Farms Beef Ltd [2016] NZERA Wellington 33, 15 March 2016

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