| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 4 |
| Hearing date | 19 Sep 2013 - 20 Sep 2013, 7 Oct 2013 (3 days) |
| Determination date | 09 January 2014 |
| Member | T G Tetitaha |
| Representation | H White ; S Turner, S Clark |
| Location | Auckland |
| Parties | Taufua v Fonterra Brands (New Zealand) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Performance of “Harlem Shake” during work break – Video uploaded to YouTube – Applicant pulled pallet jack and stood on pallet jack – Pallet jack tipped from side to side when applicant leaned to avoid object thrown at applicant – Whether applicant engaged in unsafe act in workplace endangering safety of applicant and other employees – Whether inappropriate use of work equipment – Whether applicant failed to report unsafe acts of other employees – Horseplay – Three of seven employees involved in video not dismissed – Applicant previously granted interim reinstatement |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Risk of pallet jack tipping causing injury equivocal having regard to operation of jack and speed jack travelling at. Minimal risk of injury or damage in circumstances. No accident, injury or damage requiring incident report to respondent and no legal obligation in circumstances for applicant to report incident. Disparity of treatment between employees participating in video. Actions of employees not dismissed appeared more likely to cause injury or damage than applicant’s behaviour. Speculative applicant’s behaviour more risky than employees’ not dismissed. Applicant capable of raising personal character and understanding of obligation to report incident without respondent having to interview other employees. Respondent’s assumption applicant’s union may have supported decision to dismiss not evidence of predetermination. Respondent failed to consider whether applicant’s behaviour fell within less serious breaches of health and safety obligations. Dismissal unjustified. REMEDIES: Reinstatement practicable and reasonable. 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 |
| Number of Pages | 12 |
| PDF File Link: | 2014_NZERA_Auckland_4.pdf [pdf 259 KB] |