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Workplace safety, the golden rule?
In the late 1880s gold was discovered in the Gauteng province of South Africa. It was a momentous discovery which led to one of the largest gold rushes in history.
There was plenty of gold in the ground at Gauteng, but it was difficult to extract. Hard, white rock stood in between the prospectors and their fortunes. At the time, the only affordable means of breaking through this ground was to use hard manual labour.
As the years went by, it became increasingly apparent that black workers (largely drawn from the country areas of South Africa) were far more effective to perform this manual labour than their white counterparts.
For a start, the black workers were prepared to work for about one tenth of the salary of the whites. However, it was also significant that the black workers would do something that the white workers were reluctant to do – bear the risk of a terrible disease associated with dust from the mines (which is now known as silicosis).
Interestingly, the fact of the disease – and its terrible consequences – was something which was well known to the miners at the time. The simple fact was, however, that the owners of the mines didn’t want something like this disease getting in the way of their tremendous profit potential. Furthermore, there were no laws requiring adherence to any particular standards of safety – so that, in effect, the workers were left to bear their own risks of this horrible disease.
The answer for the workers – to achieve some type of protection – lay with unionism. Through collective representation (and the potential for strike) in the 1930s the workers had bargaining leverage which they could use to seek some protection for their rights.
In itself, this was not unusual for the time. Precisely the same scenario had unfolded during the construction of the Hoover Dam in Nevada in the 1930s. In fact, one could even argue that similar health and safety issues underpinned the great union activities in New Zealand through the 1950s.
The South African miners were not, however, going to be knocked over that easily. Helpfully, the South African Government outlawed unions for black workers – something of a precursor to the apartheid laws which were introduced in the late 1940s. Without union protection, the workers were left with no safety protections at all.
This short (but I hope colourful) history of the development of an awareness of health and safety – and laws to protect it – is intended to offer a nice contrast to the society in which New Zealand employees now work. Far from being exposed to the horrible risks of disease such as silicosis, workers in New Zealand are given broad protections – which, as a recent case illustrates, may have caused some employees to take a step too far.
The decision in Wright v Tie Rack Stores Ltd (Unreported, Employment Relations Authority, 21 May 2004) concerned an employee who worked in a men’s apparel store. Mrs Wright was a Manager/sales person whose job involved selling men’s shirts and ties.
From time to time, the store would have a sale, which involved putting trestle tables outside the shop front – and loading them with shirts and ties. Moving the tables was a task that required shifting the trestles about half a metre – and loading and unloading the clothing that was displayed on top.
Wright said that, when moving tables as part of the sale, she turned over her heel and hurt her back. She said that she was in pain, and subsequently took time off work.
In early August she compiled a letter which she raised several health and safety issues including, amongst other things, the moving of the trestle tables. It seems that she was not satisfied with her employer’s reaction to this letter, and saw fit to contact an OSH inspector.
The employer’s response was curious. It issued a memorandum to all staff which – on any view – was intended to be tongue in cheek.
Amongst other things, the employer said that a worker had kindly asked OSH to help the company with the safety of its working environment. He thanked the person for risking their safety and putting themselves in danger by being in one of their stores prior to the implementation of OSH’s advice.
The employer went on to say that OSH had pointed out a “danger area” involving the shifting of trestle tables. He spelt out (in laborious detail) the step by step procedure that a worker should follow when moving shirts, ties and a trestle table the required half metre.
Wright said that she was “devastated to be humiliated” by the issue of this memorandum to her colleagues – and immediately resigned from her work. She claimed that she had been constructively dismissed.
The Employment Relations Authority had little time for Wright’s claim. Whilst it acknowledged that the employer’s memorandum was perhaps not issued in the best of taste, it was unable to conclude that Wright had no other option but to resign from that point. Amongst other things, it was noted that had Wright contacted her employer prior to resigning the matter could have been “sorted out”.
Against the terrible background of the development of health and safety worldwide, this case illustrates how petty and inconsequential safety matters will not be regarded as grounds for resignation from work. Far from being similar to a case of silicosis in the mines of Gauteng, this issue arising out of shifting a table a half metre did not amount to a serious workplace issue.
