PPE employers’ responsibility

A recent Employment Relations Authority (ERA) decision highlighted employers’ obligations around providing staff with appropriate Personal Protective Equipment (PPE)

A dispute over a pair of steelcapped safety shoes cost a Christchurch-based company more than $10,000, after the ERA determined it failed to meet its regulatory obligations to provide a former employee with suitable PPE – making his dismissal unjustifiable.

The employee was told that his safety shoes – which were held together by tape with the steel caps exposed – needed replacing. The company’s policy was for staff to purchase safety shoes worth up to $70 on a company account.

However, the cheapest pair of shoes available exceeded this value and the employee also required a more expensive pair of boots for ankle support as a result of previous injuries. As he couldn’t afford to make up the shortfall, he continued to use his worn-out shoes.

After receiving three separate on-site warnings about his footwear, he was asked to attend a disciplinary meeting, which he did without a support person.

A week later, he received a dismissal letter; the reason given was:

“You are dismissed because you knowingly continued to work on construction sites, installing insulation without adequate PPE…”

While the ERA acknowledged the employee could have done more (reducing his compensation by 20% as a result) to ensure his damaged footwear was replaced, it found ultimately that the company was negligent for not taking direct steps to supply him with new safety shoes.

As a result of this, and for not following correct processes, the ERA ordered the company to pay the former employee $9,600 plus three month’s wages (minus 20%).

What does this mean for me?

The lesson for employers is that it is your responsibility to ensure your staff have the correct PPE for the job, and to provide it for them when they do not.

In its Guidance to the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016, WorkSafe highlights that a person conducting a business or undertaking (PCBU) carrying out work at a workplace must ensure that:

a) They, or another PCBU, have provided workers with PPE appropriate to the job and

b) They, so far as reasonably practicable, ensure that workers use or wear the PPE provided to them.

The following example from the guidance illustrates those duties:

“To prevent eye injuries, the PCBU of a welding workshop provided its welders safety glasses to wear under their welding helmets. However, even after being instructed by the PCBU to always wear the safety glasses while welding, one worker regularly removed them.

“As the PCBU must ensure workers wear PPE so far as is reasonably practicable, the PCBU talked to the worker to find out why he removed his safety glasses. The worker told the PCBU that it was because wearing the safety glasses over the worker’s prescription glasses caused him discomfort. The PCBU then worked with the worker to find safety glasses that the worker could wear without discomfort.”

What else do i need to know?

The PPE provided by employers must be compatible with any other safety equipment or clothing required for the job, fit correctly and comfortably, and be suitable for the nature of the work.

Employers also have a duty to ensure that workers’ PPE is maintained properly and replaced when necessary. Proper training on use and maintenance should also be provided to workers.

On the other side of the equation, workers are responsible for ensuring they use PPE in line with the information and training given to them by the PCBU.

They also must not intentionally damage safety equipment, and they must tell the PCBU when PPE needs to be cleaned, decontaminated or has been damaged.

Are there any exceptions?

The only exception to the provision to providing workers with PPE is when the worker ‘genuinely and voluntarily chooses to provide their own’. In these cases, the PCBU must be satisfied the gear is appropriate and meets all necessary regulations.

It is important to note that workers may change their minds about this at any time; however, they must give appropriate notice if they wish the PCBU to begin supplying their PPE.