| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 82 |
| Hearing date | 15 Apr 2014 |
| Determination date | 23 May 2014 |
| Member | H Doyle |
| Representation | G Praat ; D Erickson |
| Location | Nelson |
| Parties | Gabites v Carter Holt Harvey Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Whether applicant used threatening language towards supervisor - Forklift operator |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Respondent did not raise concerns with applicant fully including why respondent considered applicant's language threatening. Words in witness statements did not fit description of threatening language easily and failure to disclose information from further investigation as to why language considered threatening breach of good faith. Respondent reached adverse conclusion when applicant said was not going to punch supervisor but did not put conclusion to applicant for comment. Respondent knew applicant had used same language previously to other employee but had not received disciplinary consequence despite being told such language unacceptable. Respondent's view other employees did not use similar language to supervisor not put to applicant. Applicant did not have reasonable opportunity to respond to whether language threatening or not. No genuine consideration of whether language abusive rather than threatening. Respondent adopted closed-mind approach. Language used by applicant unacceptable. Applicant accepted language threatening but as result of very flawed process. Fair and reasonable employer could have concluded applicant's conduct misconduct but could not have concluded applicant's words threatening language. Fair and reasonable employer should have given applicant written warning. Dismissal unjustified. REMEDIES: 20 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Leave reserved for parties to return to Authority if unable to determine quantum. $5,600 compensation appropriate. |
| Result | Application granted ; Contributory conduct (20%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($5,600) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d) |
| Number of Pages | 12 |
| PDF File Link: | 2014_NZERA_Christchurch_82.pdf [pdf 236 KB] |