| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 35 |
| Hearing date | 28 Feb 2013 |
| Determination date | 26 March 2013 |
| Member | G J Wood |
| Representation | B Stewart ; T Cleary |
| Location | Wanganui |
| Parties | Hovell v Silver Ferns Farms Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant not ambushed when complaint raised and respondent entitled to take into account fact applicant on third and final warning - Found respondent did not sufficiently investigate allegations against applicant because plant manager (“M”) did not personally interview providers of written statements and evidence against applicant needed to be convincing as allegations of threats and intimidation by applicant grave – Found M’s failure to interview witnesses personally after applicant disputed version of events not open to fair and reasonable employer - Dismissal unjustified – REMEDIES – Reinstatement not practicable and reasonable - 75 per cent contributory conduct – Respondent to pay applicant $4,550 reimbursement of lost wages – $1,500 compensation appropriate – Meat worker |
| Abstract | Applicant employed by respondent as meat worker. Applicant claimed unjustifiably dismissed by respondent. Applicant union delegate. Co-worker (“C”) claimed applicant asked C to share applicant’s work but C refused as training other worker. C claimed applicant said to disregard instructions of supervisor (“S”) and claimed applicant stated “I’m the boss”. C claimed applicant threatened to get C dismissed and called C “nark”. Supervisor who took C’s complaint claimed C genuinely scared of losing job. Applicant provided statement to nightshift supervisor. Nightshift supervisor investigated and obtained written witness statements. Applicant claimed did not receive witness statements before disciplinary meeting although union president did. Disciplinary meeting run by respondent’s plant manager (“M”). M did not interview workers who gave statements directly before meeting. At meeting applicant did not ask to read witness statements and turned down opportunity to observe video of incident. Respondent and applicant discussed applicant’s current final warning for verbally abusing another worker. M said witness statements in regard to applicant “don’t read good for you continuing your working life here.” Applicant claimed did not tell C not to listen to S or applicant “the boss”. Applicant claimed was discussing role of union with C. Applicant accepted overstepped line but claimed didn’t intend to threaten C. Adjournment of meeting called so M could consider decision and applicant could propose anything to save applicant’s job. Applicant had nothing further to say when meeting resumed. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant given notice of allegation of threatening behaviour and not ambushed when complaint raised as represented by union officials and not required to make statement at initial meetings. Respondent entitled to take into account fact applicant on third and final warning when considering whether to dismiss applicant as warning current and unchallenged by applicant. M did not predetermine dismissal and gave applicant opportunity to respond to allegations. Evidence against applicant needed to be convincing as allegations of threats and intimidation by applicant grave and M should have interviewed witnesses personally to ascertain whether threatening or intimidating behaviour by applicant reasonable inference to draw. Applicant denied threatened to get C dismissed and denial should have been raised personally with C. M’s failure to interview witnesses personally after applicant disputed version of events not open to fair and reasonable employer. Dismissal unjustified. REMEDIES: Applicant’s demonstrated inability to follow company policies in regard to arranging applicant’s work despite supervisors’ instructions, arguments with other employees and failure to follow safety procedures meant reinstatement not practicable and reasonable. 75 per cent contributory conduct. Respondent to pay applicant $4,550 reimbursement of lost wages. $1,500 compensation appropriate. |
| Result | Application granted ; Contributory conduct (75%) ; Reimbursement of lost wages ($4,550) ; Compensation for humiliation etc ($1,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELC 94,015 |
| Number of Pages | 10 |
| PDF File Link: | 2013_NZERA_Wellington_35.pdf [pdf 179 KB] |