Port worker dismissal upheld despite safety concernsDave Griffith
Auckland port worker Danny Belsham was justifiably dismissed after he refused to work due to health and safety concerns, the Employment Court has ruled.
Danny Belsham was dismissed from his employment with Ports of Auckland Limited on October 16 2013, after he refused to start work and man a straddle crane.
“I have also taken into account the fact that you are currently on an oral warning for a similar offence, given just days before 21 August.”
The court’s judgement stated Mr Belsham refused to work the straddle crane on the basis that he was not prepared to work on the Oluf Maersk – a vessel carrying a container which had previously been spilling chemicals – solely for health and safety reasons.
However in his written conclusion, Judge Mark Perkins said Mr Belsham was not correct in his assertion that the reason that he would not work was due to health and safety concerns, but instead due to a grievance to do with rosters.
“It is significant also that if the issue with the container was as serious as Mr Belsham maintained, other employees would have taken the same stand as he did, but none did,” Judge Perkins said.
“Certainly, there was no evidence from any other employee that the vessel was unsafe to discharge.”
Although Mr Belsham refused to work for a relatively short period, it proved a substantial dereliction of duty, the court’s judgement stated.
“The vessel being discharged presented a difficult situation at the port. The company had a contingency plan in place. That plan had been presented to Mr Belsham.”
Mr Belsham’s clear deceit and his curious actions in the disciplinary process meant that the employer was entitled to take the view that it could no longer have trust and confidence in him as an employee, the judgement stated.
“In all of the circumstances, the dismissal was an action which a fair and reasonable employer could take. Accordingly, the challenge is dismissed.”
Costs were reserved.
While on face value this seems quite harsh on Mr Belsham if there were definite health and safety concerns over the unloading of the ship. However the court has taken the view that due to Mr Belsham being a lone voice on the issue and there being proven prior difficulties over rostering that on balance that there was enough evidence that health and safety was not the sole issue in play. This case is a good example to other workers that while their claims might look justified in isolation, when put together as part of a bigger picture then the courts may see other other reasons behind the refusal to work.