| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 8 |
| Hearing date | 15 Sep 2011 |
| Determination date | 25 January 2012 |
| Member | R Arthur |
| Representation | C Heaton ; R Burt, S Backhouse |
| Location | Wellington |
| Parties | Pereira v Imperial Tobacco New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent factory manager (“M”) found applicant behaved in angry and forceful manner towards respondent employee (“R”) in way which amounted to harassment, verbally and physically threatened respondent logistics manager (“C”), behaved in insubordinate manner toward C and created workplace environment that was unsafe and fearful – M concluded applicant committed serious misconduct – M found dismissal most appropriate penalty because not convinced applicant would be proactive in changing behaviour, not confident applicant would be able to read others’ reactions and modify behaviour, not confident similar incident would not occur in future, zero tolerance policy on harassment and doubted applicant would comply with C’s future instructions – Authority found respondent acted unfairly by including two old incidents in disciplinary inquiry – Found C had four opportunities to address earlier incidents but failed to do so – M claimed C did not report earlier incidents because intimidated by applicant – Found M’s account not consistent with what C did at time of earlier events – Found insignificant that M and respondent human resources manager were unaware of earlier incidents until told by C and R during disciplinary inquiry – Found fair and reasonable employer could not have included two earlier allegations in disciplinary inquiry – Found in concluding applicant harassed R respondent failed to take account of R’s conduct which contributed to situation – Found evidence available did not support conclusion that R was in any real physical danger – Found C and R misled M by not reporting fact R called applicant liar and therefore M unable to consider comment as mitigating factor – Found respondent failed to fairly put to applicant allegation that applicant created unsafe and fearful working environment – Found examples cited in support of allegation lacked sufficient detail for applicant to fairly respond to them – Found M unfairly reached conclusion that applicant committed serious misconduct as placed over-emphasis on negative comments from other staff – Found respondent did not adequately consider alternatives to dismissal as failed to take account of prospects for applicant changing behaviour and improving working relationships – Dismissal unjustified – REMEDIES – Applicant sought reinstatement – Respondent opposed reinstatement on grounds it was not practicable and reasonable – Found reasonable prospects applicant could return to being harmonious and effective member of respondent’s team – Found difficulties with applicant’s reinstatement could reasonably be addressed by respondent’s human resource department and mediator – Found practicability and reasonableness of applicant’s reinstatement supported by evidence of opinions of other employees – Reinstatement ordered – 33 percent contributory conduct – Applicant admitted blameworthy elements of own conduct towards respondent employees – Found applicant should have done more to address inappropriate behaviour – Found no order for reimbursement of lost wages as evidence did not show applicant made reasonable endeavours to mitigate loss - $7,500 compensation appropriate – Leave reserved for applicant to make application for loss of benefit if parties unable to reach agreement on applicant re-entering respondent’s employee superannuation scheme – Supervisor |
| Result | Application granted ; Reinstatement ordered ; Contributory conduct (33%) ; Compensation for humiliation etc ($7,500 reduced to $5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1);ERA s4(1A)(b);ERA s103A;ERA s123;ERA s124;ERA s126;ERA s174 |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] NZEmpC 160;Donaldson & Youngman (t/a Law Courts Hotel) v Dickson [1994] ERNZ 920;Kereopa v Go Bus Transport Ltd unreported, Travis J, 18 September 2009, AC25A/09;Lewis v Howick College Board of Trustees [2010] ERNZ 1;Northern Hotel etc IUOW v Rotorua Returned Services Association Inc (1989) ERNZ Sel Cas 535;NZ Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1992] 3 ERNZ 286;NZ (With Exceptions) Food Processing, Chemical etc Factory Employees IUOW v Napier Tanning Co Ltd [1986] ACJ 149;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808;Petersen v Board of Trustees of Buller High School [2002] ERNZ 139 |
| Number of Pages | 25 |
| PDF File Link: | 2012_NZERA_Wellington_8.pdf [pdf 120 KB] |