| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 310 |
| Hearing date | 2 Jul 2012 |
| Determination date | 07 September 2012 |
| Member | R A Monaghan |
| Representation | A Maelzer ; J Dobson |
| Parties | Misiata v Chief Executive Department of Corrections |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found fair and reasonable employer would have found applicant assaulted offender (“S”) – Found respondent failed to assess nature of S’s threat towards applicant – Found respondent instead focussed on whether applicant had responded to threat appropriately, assuming S threatened applicant – Found respondent’s conclusion that applicant’s use of force not justified in circumstances still open to fair and reasonable employer - Found respondent followed fair and reasonable procedure - Dismissal justified – Corrections Officer |
| Abstract | Applicant employed by respondent as corrections officer. Applicant claimed unjustifiably dismissed by respondent. Applicant worked in receiving office responsible for processing arriving offenders. Applicant’s colleague (“T”) carried out respondent arrival process with arriving offender (“S”). Applicant entered room where S completing arrival process with T on own initiative to ask if S had seen nurse as arriving offenders required to do. T claimed applicant acted in mocking and aggressive manner towards S. Applicant claimed S told applicant to “shut up” or applicant would “eat the chair” when S stood up. T claimed as S stood up applicant struck S in face and S lost balance and nose bled heavily. Applicant claimed uncertain whether S would act on threat and applied control and restraint technique pre-emptively which resulted in applicant’s palm reaching towards S’s face. Unit manager claimed when intervened S repeatedly claimed applicant had hit S first. Investigation commenced and applicant dismissed. Parties’ code of conduct included violence against offenders as example of misconduct.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of names of offenders referred to in determination. Reasonable for respondent to conclude applicant’s account of incident unreliable. Fair and reasonable employer would have found applicant assaulted S. Serious flaws in respondent’s report on incident as failed to address whether applicant’s use of force reasonable and in self-defence. Respondent failed to assess nature of S’s threat towards applicant. Respondent instead focussed on whether applicant had responded to threat appropriately, assuming S threatened applicant. Respondent’s conclusion that applicant’s use of force not justified in circumstances still open to fair and reasonable employer. Respondent followed fair and reasonable procedure. No evidence of disparity of treatment. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Corrections Act 2004 s14(1)(a);Corrections Act 2004 s83;Corrections Act 2004 s84;ERA s103A;ERA Second Schedule cl10 |
| Cases Cited | Chief Executive of the Department of Corrections v Tawhiwhirangi [2007] ERNZ 610;Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767;Honda New Zealand Ltd v New Zealand Boilermakers Union (1990) ERNZ Sel Cas 855 ; [1991] 1 NZLR 392;Housham v Juken New Zealand Limited [2007] ERNZ 183;Samu v Air New Zealand Ltd [1995] ERNZ 636;Secretary for Justice v Dodd (2010) 7 NZELR 578 |
| Number of Pages | 18 |
| PDF File Link: | 2012_NZERA_Auckland_310.pdf [pdf 227 KB] |