| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 230 |
| Determination date | 07 June 2013 |
| Member | T G Tetitaha |
| Representation | H White ; S J Turner, S J Clark |
| Parties | Taufua and Anor v Fonterra Brands (New Zealand) Ltd |
| Other Parties | C Flynn |
| Summary | INJUNCTION – Applicants sought interim reinstatement – Applicants dismissed after YouTube video discovered of applicants performing ‘Harlem Shake’ in work place – Collective employment agreement – Applicants alleged to have endangered themselves and other employees – Riding paper trolley – Dancing with shovel between legs – Hosing water where another employee dancing – Whether applicants failed to report unsafe acts by other employees – Whether applicants’ conduct breached code of conduct and health and safety policies – Whether damages adequate remedy – Packer and robot operator – Filling machine operator |
| Abstract | AUTHORITY FOUND –;INJUNCTION: Applicants wearing hairnets in one video. Arguable protective clothing requirements had been met. No evidence equipment used or damaged was fire protection or safety equipment. No evidence of accident, injury, or damage to property. Arguable applicants’ behaviour less than wilful or deliberate action. Arguable no positive obligation to report conduct in videos. No repeated infringements. Conflict of evidence about remorse could not be resolved on papers. Arguable case for reinstatement. No evidence of concerns about applicants prior to video incident. No prior dysfunctional behaviour or incidents. Loss of income would cause applicants’ financial hardship. Respondent’s concerns could be met by placing applicants’ on garden leave. Balance of convenience favoured applicants. Overall justice dictated interim reinstatement appropriate. Application for interim reinstatement granted. |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s125(2);ERA s127(4);ERA s103A |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Ansley v P&O Services (NZ) Ltd unreported, Goddard CJ, 3 June 1998, WC34/98;Kaipara v Carter Holt Harvey Ltd (2012) 9 NZELR 545;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;New Zealand (except Northern, Marlborough, Otago and Southland) Shop Employees and Related Trades Industrial Union of Workers v Woolworths (New Zealand) Ltd [1984] ACJ 37;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;X v Y Ltd [1992] 1 ERNZ 863 |
| Number of Pages | 10 |
| PDF File Link: | 2013_NZERA_Auckland_230.pdf [pdf 253 KB] |