Lessons to be learnt from fire
The dust is only beginning to settle in Auckland after the devastating fire at the SkyCity convention centre last week. Residents and workers alike were told to avoid the CBD, amid concerns that the smoke seen billowing from the building was toxic and presented a danger to public health.
Meanwhile, it has been reported that when the fire started, SkyCity employees working nearby were told to keep working for almost four hours. This was despite smoke being visible and the smell of the
Fire crews inspect the rooftop during Auckland’s SkyCity convention centre fire.
fumes being so overwhelming that employees reported feeling sick.
One staff member reported that when workers attempted to put cloths over their faces to protect themselves, they were told to remove them. Other employees reported being told that if they wanted to go home, they had to take annual leave.
If true these incidents raise serious issues as to the extent to which an employer can insist employees remain at work in
circumstances where they could be putting themselves in danger.
The starting point is that under the Health and Safety at Work Act, employers are responsible for providing their employees with a workplace that is safe and healthy.
Likewise, employees are required to take reasonable care to ensure their own health and safety, and where they become aware of hazards within the workplace, they should immediately advise their employer. If nothing is done to eliminate or minimise that hazard, employees have the right under the act to refuse to work in an environment that they consider to be unsafe.
In this regard, employees are required to follow instructions from their employer, provided those instructions are ‘‘lawful and reasonable’’.
It follows that an employee would be within their rights to refuse to continue working in an environment where this might endanger their health and safety.
The fire at the SkyCity convention centre also forced many businesses, including SkyCity, to remain closed for days.
This raises further issues for both businesses and employees, including whether or not employers are obliged to continue paying staff where they are prevented from coming into the workplace.
Although rarely used, many employment agreements have a ‘‘force majeure’’ clause, or what is otherwise known in legal terms as ‘‘frustration of contract’’. This applies where forces outside of the employer and employee’s control mean the employment relationship can no longer be continued.
It is unlikely that any employer would or could rely on such clauses where there was just one or two days of business disruption, but if the impact was ongoing, these sorts of provisions might justifiably be invoked.
Another issue arising out of last week’s fire is the claim that staff at SkyCity were advised that if they wanted to go home, they would be required to take annual leave.
Under the Holidays Act, an employer must provide an employee with at least 14 days’ notice if they require them to take annual holidays.
While it is open to both parties to agree to lesser notice being given, requiring an employee to take annual holidays without providing them with this minimum period of notice would be in breach of the act.
There are a number of employment law issues that fall out of last week’s fire. While catastrophic, particularly from an economic perspective, it is hoped that there are no longterm health consequences for people within the affected area, and that businesses use this as an opportunity to review their disaster management plans.
Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers.