| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 282 |
| Hearing date | 27 Jul 2012 |
| Determination date | 20 August 2012 |
| Member | R Larmer |
| Representation | R Bianchi ; A Russell |
| Location | Tauranga |
| Parties | Higson v Downer New Zealand Ltd t/a Downer |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent - Applicant assaulted employee of respondent’s client – Authority found was close nexus between applicant’s conduct outside of work and employment – Found inevitable applicant’s assault on employee of respondent's client would have adverse impact on respondent’s relationship with client – Found dismissal not predetermined decision – Found fair and reasonable employer could have concluded applicant’s actions amounted to serious misconduct and dismissal appropriate – Found respondent carried out fair and reasonable investigation - Dismissal justified - Traffic Controller |
| Abstract | Applicant employed as traffic controller. Applicant claimed unjustifiably dismissed by respondent. Applicant had responsibility for ensuring safety of those working on and travelling through respondent worksite. Applicant assaulted employee of respondent’s client (“B”). Assault occurred outside of work and applicant convicted of assault. Respondent claimed assault work-related matter due to respondent’s relationship with B’s employer (“GCS”). Respondent had ongoing relationship with GCS. Applicant’s supervisor (“C”) previously received complaint from GCS that applicant had failed to provide appropriate control services to GCS. Respondent took steps to ensure applicant did not have contact with B or GCS. Applicant subsequently complained that B and B’s father, owner of GCS, on respondent’s worksite without authorisation (“incident”). B’s father told respondent that during incident applicant had sworn at and threatened B. B’s father claimed had been further incidents where B’s father subject to ‘near miss’ at worksite while applicant driving respondent vehicle and applicant shouted at B’s father and “gave him the finger” (“further complaints”). Investigation commenced. Respondent concluded that further complaints of B’s father did not indicate applicant had driven respondent vehicle with malice but applicant had not followed appropriate work practices. Respondent’s decision to issue applicant with written warning superseded by subsequent assault. Respondent invited applicant to disciplinary meeting relating to assault. Applicant dismissed. Applicant accepted respondent had discussed concerns before applicant dismissed and applicant had reasonable opportunity to respond.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority noted respondent’s name had changed during proceedings and application changed accordingly. Employee’s actions outside of work could be employment matter if clear relationship between conduct outside of work and employment. Was close nexus between applicant’s conduct outside of work and employment. Inevitable applicant’s assault on B would have adverse impact on respondent’s relationship with GCS. In circumstances was close connection between assault and applicant’s working environment. Respondent did not need to interview witnesses to assault as applicant did not dispute had assaulted B. Dismissal not predetermined decision. Fair and reasonable employer could have concluded applicant’s actions amounted to serious misconduct and dismissal appropriate. Respondent carried out fair and reasonable investigation. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Smith v Christchurch Press Company Ltd [2000] 1 ERNZ 624 ; [2001] 1 NZLR 407 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Auckland_282.pdf [pdf 182 KB] |