| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 247 |
| Hearing date | 15 May 2012 |
| Determination date | 24 July 2012 |
| Member | E Robinson |
| Representation | S Mitchell ; T Cleary |
| Location | Rotorua |
| Parties | Tautari v Silver Fern Farms Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for making threat of physical harm to manager – Authority found threatening behaviour considered by respondent to be serious misconduct as set out in employee handbook and dismissal open to fair and reasonable employer – Found applicant refused to provide explanation despite having opportunity and being aware of right to provide one – Found applicant not shown written witness statements or informed of union president’s alleged statement applicant admitted threatening respondent’s production manager – Found applicant denied opportunity to address allegations fully – Dismissal unjustified – REMEDIES – Reinstatement not practicable and reasonable – 60 per cent contributory conduct – Respondent to pay applicant reimbursement of lost wages, parties to determine quantum - $2,000 compensation appropriate – Meat processing worker |
| Abstract | Applicant employed by respondent as meat processing worker. Applicant claimed unjustifiably dismissed by respondent. Applicant became concerned preference being shown to some employees in allocation of jobs. Applicant arrived at work and learnt fellow employee (“J”) working in certain area and believed would be difficult to meet quota in applicant’s work area with J absent. After discussion between respondent’s production manager (“M”) and applicant, M learnt applicant had gone to specified area and verbally attacked J and another employee. Applicant called to meeting. Meeting became heated. M claimed applicant stood, looked as if would come across room and threatened to ‘smash’ M’s head in. Applicant claimed thought M laughing at applicant so told M applicant would ‘do’ M. M claimed as applicant leaving room, applicant turned and ran towards M with clenched fists saying would ‘do’ M. M claimed jumped from chair and backed away as believed applicant about to strike M. After leaving meeting applicant and J had heated exchange. At subsequent meeting applicant told could face dismissal if allegation applicant had threatened and ‘come at’ M substantiated. Applicant refused to respond. After respondent’s plant manager (“F”) found witnesses intimidated and reluctant to speak to F, F asked fellow employee (“C”) to interview witnesses and provided C with list of questions. Applicant’s union president (“N”) denied told F applicant admitted threatening M. At subsequent meeting applicant declined union representation and did not provide explanation. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant and M both agitated before meeting and M’s belief about to be struck by applicant upheld by evidence. Threatening behaviour considered by respondent to be serious misconduct as set out in employee handbook and dismissal open to fair and reasonable employer. Unorthodox to ask C to interview witnesses but questions uniform and aimed to provided F with required information. Applicant aware of nature of allegation. Applicant experienced union delegate who knew of right to have representation at disciplinary meeting but chose not to. Applicant refused to provide explanation despite having opportunity and being aware of right to provide one. Applicant not shown written witness statements or informed of N’s alleged statement applicant admitted threatening M. Applicant denied opportunity to address allegations fully. Dismissal unjustified. REMEDIES: Respondent entitled to take account of health and safety concerns and duty to keep M and J safe in workplace. Reinstatement not practicable and reasonable. 60 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, parties to determine quantum. $2,000 compensation appropriate. |
| Result | Application granted; Contributory conduct (60%); Reimbursement of lost wages (parties to determine quantum); Compensation for humiliation etc ($2,000); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s124;ERA s125;ERA s128(2) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1994] 2 ERNZ 414 |
| Number of Pages | 17 |
| PDF File Link: | 2012_NZERA_Auckland_247.pdf [pdf 232 KB] |