| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 2 |
| Hearing date | 22 Jul 2013;25 Jul 2013 |
| Determination date | 09 January 2014 |
| Member | T G Tetitaha |
| Representation | H White ; S J Turner, S J Clark |
| Location | Auckland |
| Parties | Flynn v Fonterra Brands (New Zealand) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Dismissal unjustified |
| Abstract | Applicant (Mr Flynn) employed by respondent (Fonterra Brands (New Zealand) Ltd) (Manufacturing Sector). Applicant claimed unjustifiably dismissed by respondent. Applicant and six other employees participated in production of videos showing employees re-enacting “Harlem Shake”. Videos uploaded to YouTube. Videos showed applicant dancing with plastic shovel between legs. Applicant hosed water into chemical footbath causing water to overflow and pool around other employee’s feet. Applicant danced on apparently wet surface. Applicant wore protective clothing. Actions not reported to respondent by employees. Respondent claimed applicant engaged in unsafe acts in workplace by pouring water onto floor and into chemical bath in order to perform unsafe dance and by dancing with shovel between legs. Respondent claimed applicant used work equipment inappropriately. Respondent claimed applicant failed to report unsafe acts witnessed in workplace. Applicant dismissed. Four employees not dismissed. Respondent claimed dismissal open to fair and reasonable employer given importance of health and safety. Applicant accepted incidents horseplay and participation in videos misconduct but denied should have been dismissed. Authority previously granted applicant interim reinstatement.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Risk of applicant tripping due to dancing with shovel between legs minimal and evidence did not support conclusion applicant endangered health and safety of employees. Respondent’s concern about applicant’s participation in second video after participating in first video not raised with applicant clearly at time of dismissal and conduct fell within less serious category of misconduct under dismissal and discipline policy. Evidence of risk of slipping in second video equivocal and no other evidence applicant’s actions increased likelihood of slipping, other than marginally, from normal risk. No evidence overfilling of footbath was for purpose of engaging in unsafe act of dancing. Protective clothing required to be worn in workplace and wearing clothing could not logically be serious misconduct as defined in disciplinary policy. Applicant wore similar clothing to other employees and danced in similar position to other employee. Conduct of other employees wearing buckets on head while dancing more risky than applicant’s. Little in videos to suggest applicant’s dancing more risky than others’. Inexplicable disparity of treatment between applicant and other employees found to have committed serious misconduct but not dismissed. No accident, injury or damage shown in videos requiring report to respondent and no obligation for applicant to report other employees’ conduct under respondent’s policies. Respondent’s concerns applicant recruited others for videos, compromised sterility of chemical footbath, increased risks of slipping through cream or milk product on floor, increased risk of employees being splashed with chemicals from footbath, contaminated packaging and failed to wear earmuffs not raised with applicant prior to dismissal but influenced decision to dismiss. Evidence available disputing respondent’s concerns. Respondent failed to consider alternatives to dismissal. Dismissal unjustified. REMEDIES: Reinstatement practicable and reasonable given respondent able to repair any breach of trust and confidence with employees not dismissed for same or similar conduct. Reinstatement ordered. 100 per cent contributory conduct. |
| Result | Application granted ; Reinstatement ordered ; Contributory conduct (100%) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(5);ERA s124 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Goodfellow v Building Connexion Ltd t/a ITM Building Centre [2010] NZEmpC 82;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;Samu v Air New Zealand Ltd [1995] 1 ERNZ 636;Taufua v Fonterra Brands (New Zealand) Ltd [2013] NZERA Auckland 230;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 ; [2001] 3 NZLR 29 |
| Number of Pages | 13 |
| PDF File Link: | 2014_NZERA_Auckland_2.pdf [pdf 267 KB] |