| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 65 |
| Hearing date | 20 Nov 2012 |
| Determination date | 09 April 2013 |
| Member | K J Anderson |
| Representation | P Walker (in person) ; D MacKinnon |
| Location | Dunedin |
| Parties | Walker v Firth Industries - A Division of Fletcher Concrete & Infrastructure Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for refusing to follow lawful and reasonable instruction and acting in aggressive and abusive manner towards manager (“C”) – Authority found no evidence applicant suffered work-related stress or not coping with “batching” work - Less than ideal C involved in decision-making process but C only senior manager present, other employee involved in process also and final decision made by C’s manager – Found applicant represented at all times and union representative satisfied fair process followed – Found applicant obliged to carry out “batching” work under collective employment agreement – Found applicant breached code of conduct by acting in offensive or abusive manner towards C and respondent entitled to treat applicant’s refusal to carry out lawful and reasonable instruction as serious misconduct – Found applicant refused absolutely and continuously to carry out “batching” work and maintained belligerent and aggressive stance during disciplinary process – Dismissal justified – Driver |
| Abstract | Applicant employed by respondent as driver. Applicant claimed unjustifiably dismissed by respondent. Applicant trained to batch mix concrete (“batching”) and performed batching work during manager’s (“R”) absence from work. R returned to work but hours of work not enough for total amount of batching required each day. R’s manager (“C”) informed applicant required to carry out batching work later same day. C claimed applicant lost temper, stated would not do batching and began walking away. C claimed told applicant to stop, warned applicant to stop “pushing” or C would “push harder” and claimed applicant returned and began yelling at C from close proximity. C claimed applicant left yelling would not do batching. Applicant spoke to R who accepted applicant’s departure as considered applicant not in fit state to be at work. Applicant informed behaviour could be serious misconduct under code of conduct and attended disciplinary meeting with C and human resources employee (“D”). Applicant claimed had only been doing batching as favour and claimed threatened by C’s statement would “push harder” than applicant. Applicant adamant could not be required to, and would not, do batching work. At subsequent meeting applicant admitted disobeyed C’s instructions but claimed refusal due to stress and inability to cope with job. Applicant denied abusing or threatening C or leaving work without permission. Applicant’s representative attested applicant clear would not do batching work. At subsequent meeting applicant claimed provoked by C. C and D consulted managers who had been briefed throughout disciplinary process. Final decision made by C’s manager. Applicant dismissed. Respondent claimed applicant breached code of conduct by declining to follow C’s instructions regarding batching and acting in aggressive and abusive manner towards C.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: No evidence applicant indicated to respondent before disciplinary meetings suffering work-related stress and no evidence applicant not coping with batching work prior to incident with C. Less than ideal C involved in decision-making process as C also complainant but C only senior manager present, D involved in process also and final decision made by C’s manager who was briefed fully. Applicant represented at all times and union representative satisfied fair process followed. Applicant trained adequately to carry out batching work, had carried out batching work in past and obliged to carry out batching work under collective employment agreement. Applicant breached code of conduct by acting in offensive or abusive manner towards C and respondent entitled to treat applicant’s refusal to carry out lawful and reasonable instruction as serious misconduct under code of conduct. Applicant refused absolutely and continuously to carry out batching work as requested and maintained belligerent and aggressive stance during disciplinary process meaning respondent could no longer have trust and confidence in applicant. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Allen v C3 Ltd (2012) 9 NZELR 499;New Zealand (with exceptions) Shipwrights and Boatbuilders, Moulders, Coachworkers, Boilermakers, Pulp and Paper Workers and Optical Technicians Union v Honda New Zealand Ltd [1989] 3 NZILR 791 |
| Number of Pages | 10 |
| PDF File Link: | 2013_NZERA_Christchurch_65.pdf [pdf 178 KB] |