| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 205 |
| Hearing date | 22 May 2014 |
| Determination date | 26 May 2014 |
| Member | T G Tetitaha |
| Representation | J Cairns ; R Palmenter |
| Location | Auckland |
| Parties | Zelinka v Peter Gilling Fasteners (2004) Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Altercation with co-worker (J") - Whether applicant grabbed J and raised hand with clenched fist - Verbal warning following previous incident between applicant and J - Use of applicant's wife as translator at investigation meeting - General factory hand" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Threats of violence serious misconduct and constituted breach of employer's trust and confidence in employee's ability to behave appropriately and safely in workplace. No absolute right to interpreter during disciplinary process. Meetings with applicant short and overshadowed by applicant's apparent lack of English language ability. Speed that matters progressed from investigation to dismissal unwarranted in circumstances. Opportunity to seek legal advice prior to dismissal imperative in cases where employee had diminished understanding of English. Failure to provide opportunity to seek legal advice unfair and did not allow applicant reasonable opportunity to respond. Dismissal unjustified. REMEDIES: More probable than not applicant threatened J. 75 per cent contributory conduct. $1,250 compensation appropriate. |
| Result | Application granted ; Contributory conduct (75%) ; Compensation for humiliation etc ($1,250) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(3);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s103A(5);ERA s124;ERA s160(f) |
| Cases Cited | Alwen Industries Ltd v Collector of Customs [1996] 3 NZLR 226;Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;NCR (NZ) Corp Ltd v Blowes [2005] ERNZ 932;New Zealand Institute of Fashion Technology v Aitken [2004] 2 ERNZ 340;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;Zinck v Sleepyhead Manufacturing Co Ltd [1995] 2 ERNZ 448 |
| Number of Pages | 8 |
| PDF File Link: | 2014_NZERA_Auckland_205.pdf [pdf 272 KB] |