| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 539 |
| Hearing date | 11 Oct 2011 - 12 Oct 2011 (2 days) |
| Determination date | 19 December 2011 |
| Member | E Robinson |
| Representation | D Christensen ; J Rooney |
| Location | Tauranga |
| Parties | Cornes v Newmont Waihi Gold Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant notified respondent’s plant manager (“H”) that employee (“B”) had reported for work intoxicated – H decided B not intoxicated and not necessary for respondent to take further action – Applicant claimed employees blamed applicant for respondent’s introduction of drug and alcohol policy same month applicant notified H – Applicant’s manager (“T”) claimed respondent’s introduction of drug and alcohol policy not connected with B’s alleged intoxication – Applicant sent H and T email that after applicant notified H applicant was harassed and ostracised by co-workers - Respondent’s human resources coordinator (“N”) claimed decided matter was personality issue and little action respondent could take – Applicant claimed eight months later co-worker (“G”) intentionally slammed door into applicant – G claimed applicant was trouble maker and had shut door as applicant following G – Applicant claimed sent respondent email about G’s conduct but respondent failed to reply – T claimed applicant complained about G’s conduct on confidential basis – T claimed investigated incident and concluded G and applicant equally blameworthy although not possible for G to slam door as applicant had claimed due to door’s safety fastening – Applicant claimed had no choice but to attend refresher harassment training with G and G continued to harass applicant – G denied harassed applicant and claimed was no need for applicant to attend same training session as G – H claimed nothing to suggest applicant was uncomfortable at training and applicant could have attended alternative session – Applicant claimed was further incident five months later where G hit applicant’s arm with clipboard – T claimed G tapped applicant on arm with clipboard to get applicant’s attention – Applicant claimed also subjected to ongoing obscene gestures from co-workers and called “gay” and “nark” – N claimed applicant made complaint and gave N photograph of word “nark” on applicant’s mask but applicant did not want N to investigate other incidents – Applicant admitted had hung “I’m gay” sign on back of T’s truck – Co-workers told applicant G had been talking about applicant at union meeting – G did not want to talk to applicant when applicant asked G what had said at union meeting – Applicant followed G as wanted response – Applicant claimed G and applicant swore at each other and G punched applicant in face until applicant pushed pen into G’s leg – G claimed lost footing when hit from behind and fell down stairs, applicant stabbed G in shoulder with pen and denied punched applicant – Co-worker (“P”) claimed saw G on ground and G told P applicant had pushed and stabbed G with pen – P claimed applicant covered in blood and told P G had “gone mental” but P believed G telling truth – Applicant laid assault charge against G – T claimed G had blood over hands and seemed shaken and distraught – N, T and G’s manager (“S”) met applicant at police station – N told applicant that applicant or G could lose jobs – Parties held meeting and applicant had union delegate (“F”) as support person – Applicant claimed inappropriate that S present as S was G’s manager and would be biased – Applicant denied was told would be suspended on full pay and claimed forced to have F as support person – Witnesses claimed did not see G hit applicant - Respondent re-enacted incident and concluded applicant’s version of events unlikely and G had acted in self-defence – Parties held disciplinary meeting same day as incident – Applicant denied aware was disciplinary meeting and claimed still in state of shock after incident – N claimed considered applicant’s explanation before applicant dismissed – Applicant claimed dismissal predetermined and inappropriate G only received caution – Applicant claimed applicant’s earlier harassment complaints should have been taken into account - Authority found justification for dismissal to be determined under amended s103A Employment Relations Act 2000 – Found applicant aware of respondent’s code of conduct – Found parties’ trust and confidence destroyed by incident – Found applicant had ample opportunity to tell respondent not in fit state to attend disciplinary meeting after incident – Found respondent told applicant had been suspended and no grounds to suggest S biased – Found applicant freely chose F as support person – Found respondent carried out full and fair investigation – Found respondent’s decision not predetermined although not appropriate respondent had dismissal letter written before disciplinary meeting – Found fair and reasonable employer entitled to conclude G acted in self-defence and mitigated G’s serious misconduct offence – Found respondent’s actions those of fair and reasonable employer in all circumstances – Dismissal justified - UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged as subjected to bullying and harassment and respondent failed to respond to complaints – Respondent claimed provided applicant with safe working environment – Found significant applicant did not raise personal grievance had been unjustifiably dismissed within 90 day period – Found respondent investigated applicant’s complaints appropriately and ensured applicant provided with safe working environment – No disadvantage - Mill Operator |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s114(1) |
| Cases Cited | Housham v Juken New Zealand Ltd [2007] ERNZ 183;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483 |
| Number of Pages | 29 |
| PDF File Link: | 2011_NZERA_Auckland_539.pdf [pdf 142 KB] |