Can you do the Harlem Shake at work?


The recent case of Craig Flynn v Fonterra Brands (New Zealand) Limited [2014] NZERA Auckland has highlighted the need for employers to be cautious when using breaches of Health and Safety as a reason for summarily dismissing an employee.

The case illustrates that Employers would be wise to consider whether the behaviours do in fact come under other disciplinary grounds which would make for a stronger case.

In Craig Flynn, Mr Flynn, along with other employees, made two videos of their own version of the “Harlem Shake”, on work premises during work hours.  In the first video, Mr Flynn was dancing around a pallet with a plastic shovel between his legs.  In the second, Mr Flynn was hosing water into a chemical footbath, letting it overflow which caused water to pool on the ground around the footbath.  Mr Flynn is then seen dancing next to the footbath,  the water had drained away but the ground was still wet. 

Fonterra believed Mr Flynn’s actions in the videos were unsafe, and could have caused injury to himself or others (by Mr Flynn tripping over while dancing or slipping on the wet floor).  Fonterra’s decision to summarily dismiss Mr Flynn, based on a breach of their Health and Safety policy and procedures, seemed like viable grounds for dismissal. 

However, as the Authority found, the evidence showed that Fonterra really had no basis for using breach of Health and Safety as grounds for dismissal. 

Evidence showed that in fact the flooring around the footbath was designed to be wet (because everyone was required to sanitise their footwear in the footbath before entering the premise).  As the floor would inevitably get wet during this procedure, it was specifically treated to allow extra grip in wet conditions, and was designed so the surface water drained away.  Furthermore, Mr Flynn was wearing appropriate footwear for wet conditions. 

With regards to Mr Flynn dancing with a plastic shovel between his legs, the Authority found the risk of tripping was minimal and that the evidence didn’t support the conclusion that Mr Flynn’s actions endangered the other employees.

The Authority found overall that Mr Flynn’s conduct did not endanger the health or safety of himself or others as Fonterra had contemplated.

Fonterra also tried to argue that Mr Flynn was inappropriately using the protective clothing he was wearing due to the fact he was wearing them while dancing.  It does not follow that just by wearing the protective clothing during the video he was using them inappropriately.  It was illogical for Fonterra to argue this as protective clothing had to be worn at all times while on the premise regardless of what a person was doing. 

It was accepted Mr Flynn’s actions were “horseplay” but in the circumstances the actions did not amount to a breach of Fonterra’s Health and Safety policy and procedures.

Fonterra conceded they did not consider breaches of other policies as grounds for dismissal.  The Authority found the conduct of Mr Flynn actually fell within their discipline and dismissal policy, specifically the misuse or unauthorised use of Fonterra property or time. 

Another angle that Fonterra arguably could have considered is the social media aspect - that Fonterra’s reputation was brought into disrepute by the videos being broadcast on Youtube. 

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