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Doing your job ... without relief
Have you ever wondered how the call of nature affects people in certain jobs?
What about a shop assistant, alone in a store in a large shopping complex? How about an airline pilot, responsible for a plane through a 16 hour flight?
The simple fact is that all employers must provide for their employees to be able to take "comfort stops" - as they may be reasonably required. Depending upon the particular type of employment, there may be constraints upon when that may happen. A truck driver, for example, may be constrained by the availability of roadside facilities.
A failure to provision adequately for this particular matter can, however, lead to disastrous consequences.
Take the example of the great astronaut, John Glenn. In the early 1960s, he was the pilot of a spacecraft that was intended to complete a three hour mission before returning to earth. Instead, however, the launch of the space craft was delayed by six hours - meaning that Mr Glenn was trapped inside the craft's confined space all day. The engineers who designed his space suit had not provisioned for the possibility that he might need to take a comfort stop while wearing it. As a consequence, Mr Glenn jokingly referred to himself as a "wet back".
In Jones v Pacifica Shipping (1985) Limited (Unreported, Employment Relations Authority, Christchurch, 27 May 2004) the Employment Relations Authority was asked to consider the consequences at employment law of a case involving an employee who had taken a comfort stop while at work.
The case concerned an incident which involved the Master of the ship, Spirit of Resolution - a large commercial vessel. The Master, Jones, had taken over a watch - and was alone on the bridge of the ship. 15 minutes after commencing his shift, he had checked visually and by radar, and had noted only two other nearby vessels in the path of the ship. Having satisfied himself that there were no other vessels in the vicinity and presumably that there would be no danger presented to the two identified vessels - he went to the toilet. The toilet door opened onto the bridge, but Jones could not keep a look out for the time that he was in there.
As it happened, there was a charter vessel, the Bounty, with a number of people aboard it, anchored at a crayfish buoy directly ahead of the Spirit of Resolution. The people on the Bounty saw the large commercial vessel bearing down on them, but did not manoeuvre away at first - thinking that the master of the larger vessel would see them, and alter the ship's course to avoid any collision.
Possibly fearing his own mutiny on the Bounty if he did not take action, the skipper of the smaller vessel took evasive action, and got out of the way just in time to avoid a collision with the Spirit of Resolution.
Jones had made it back to the bridge in time to take some evasive action of his own. He did not, however, manage to identify the name of the other vessel. Jones made an entry in the ship's log about the incident - but otherwise did not report it to the management of Pacifica.
After both vessels had returned to port, the skipper of the Bounty made a complaint to the chief executive of Pacifica. The company responded by requiring Jones to participate in a disciplinary investigation about the matter. That investigation process was completed, and the employer made a decision to dismiss Jones from his employment.
Significantly, in reaching its view about the appropriate penalty to impose, the company reflected upon Jones' apparent failure to notify the Maritime Safety Authority about the incident in a timely manner. The company took account of warnings that apparently had been made to Mr Jones about previous incidents - and, weighing these different things, concluded that termination was appropriate.
The Authority found, however, that the company had acted unfairly by giving the previous incidents weight as formal warnings - and that as a result, the decision to dismiss him was held to be unfair.
As a consequence, the Authority ordered Pacifica to compensate Jones by paying three months' salary and superannuation entitlements, together with $12,000 to remedy his hurt and humiliation. These sums were, however, reduced by 50% to reflect Jones' contribution to the incident.
Interestingly, part of Jones' challenge to the dismissal was based on the company's apparent failure to organise work on board the Spirit of Resolution in a way that allowed for the master to use the toilet. The Authority reflected on the fact that there is an obligation on every vessel to maintain a proper look-out by sight and hearing as well as by all technological means - and that a primary responsibility to ensure that this obligation was kept lay with the master. The Authority held that these different matters were adequately considered by Pacifica in reaching its views about the incident.
This case serves as a reminder about the importance for employers - particularly in certain industries - to ensure that the obligation to allow employees to take comfort stops does not interfere with the ability to perform work - and, particularly, does not endanger the health and safety of others.
