110A Adverse conduct for prohibited health and safety reason

(1)

For the purposes of this Part, an employer engages in adverse conduct for a prohibited health and safety reason if the employer or a representative of the employer, for a prohibited health and safety reason,—

(a)

dismisses an employee; or

(b)

refuses or omits to offer or afford to the employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or

(c)

subjects the employee to any detriment in circumstances in which other employees employed by the employer in work of that description are not or would not be subjected to such detriment; or

(d)

retires the employee, or requires or causes the employee to retire or resign.

(2)

For the purposes of subsection (1), conduct described in that section is engaged in for a prohibited health and safety reason if it is engaged in for a reason described in section 89 of the Health and Safety at Work Act 2015.

(3)

An employer may be found to have engaged in adverse conduct for a prohibited health and safety reason only if the prohibited health and safety reason was a substantial reason for the conduct.

(4)

For the purposes of subsection (3), a prohibited health and safety reason is presumed to be a substantial reason for the conduct unless the employer proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.

(5)

It is a defence to an action for a personal grievance under section 103(1)(j)(i) if the employer proves that—

(a)

the conduct was reasonable in the circumstances; and

(b)

a substantial reason for the conduct was to comply with the requirements of the Health and Safety at Work Act 2015 or other relevant health and safety legislation (as defined in section 16 of that Act).

(6)

For the purposes of this section,—

(a)

an employer also engages in adverse conduct if the employer or a representative of the employer, in relation to the employee,—

(i)

organises to take any action referred to in subsection (1) or threatens to organise or take that action; or

(ii)

requests, instructs, induces, encourages, authorises, or assists another person to engage in adverse conduct for a prohibited health and safety reason:

(b)

detriment includes anything that has a detrimental effect on the employee’s employment, job performance, or job satisfaction.

Section 110A: replaced, on 4 April 2016, by section 8 of the Employment Relations Amendment Act 2015 (2015 No 73).

Section 110A(5): amended, on 31 March 2017, by section 5 of the Regulatory Systems (Workplace Relations) Amendment Act 2017 (2017 No 13).