Lessons from the 'Harlem Shake' case

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Employers should consider when summarily dismissing employees whether their behaviour violates a range of policies, in light of a recent Employment Relations Authority ruling.

In a commentary on the case of “Harlem Shaker” Craig Flynn vs Fonterra, Cavell Leitch employment team partner, Peter van Keulen, advised employers should investigate whether unacceptable behaviour by individuals could fall under other disciplinary grounds that may make a stronger case for dismissal.

In the "Harlem Shaker" case the Authority found that dancing was not enough of a breach of health and safety rules to justify dismissal.

Flynn, along with other employees, made a version on the viral dance craze, the Harlem Shake, while at work. The video was subsequently posted on YouTube and showed Flynn dancing with a shovel between his legs and hosing water where another was dancing.

Fonterra claimed Flynn had committed serious health and safety breaches, which constituted serious misconduct and justified his summary dismissal. They called his actions in the videos unsafe, and that they could have caused injury to himself or others.

Van Keulen wrote that while Fonterra's decision to summarily dismiss Flynn on the grounds of breaching health and safety policies seemed like viable grounds, the Authority ruled that it was not.

The evidence showed that as the footbath was designed to be wet, as workers were required to sanitise their footwear before entering the premise, the floor was treated to allow extra grip in wet conditions, and designed so the surface water drained away. Flynn was also wearing appropriate footwear for the 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,” van Keulen explained.

“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,” van Keulen wrote.

The Authority accepted 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. It ordered for Flynn to be reinstated.

While Fonterra didn’t consider breaches of other policies as grounds for dismissal the Authority found Flynn’s conduct fell within their discipline and dismissal policy, specifically the misuse or unauthorised use of Fonterra property or time.

Van Keulen added that another angle Fonterra “arguably could have considered” was the social media aspect – “that Fonterra's reputation was brought into disrepute by the videos being broadcast on YouTube”.

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