| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 275/05 |
| Hearing date | 23 Feb 2005 |
| Determination date | 19 July 2005 |
| Member | Y S Oldfield |
| Representation | R Alchin ; A Drake |
| Location | Auckland |
| Parties | Ball v New Zealand Dairy Foods Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Fighting on the job - Supervisor became angry when applicant asked about a co-worker's tasks - Exchange of swear words - Supervisor pushed applicant on shoulder asking if he wanted to go" - Applicant tried to move supervisor away by pushing his leg - Supervisor flipped applicant's plate of food and hit him in back of head - Applicant stood up and pushed supervisor in face - Supervisor grabbed applicant's jacket and pushed him through window, causing cut to applicant's shoulder - Applicant dismissed - No fault with essential format of disciplinary process - Procedural fairness - Respondent of view that applicant had choice about how to respond to incident - Information respondent had did not provide reasonable grounds to conclude there was misconduct of such seriousness to justify applicant's dismissal - Respondent operating under unrealistic expectation when applicant was subordinate in situation - Applicant reacted to defend himself against persistent bullying - Not open for reasonable employer to dismiss - Remedies - Dismissal occurred two weeks before Christmas and three weeks before baby due - Parties to attend mediation to discuss reinstatement and reimbursement of lost wages - UNJUSTIFIED DISADVANTAGE - Applicant's health and safety endangered by supervisor's behaviour but risk of supervisor's conduct was not foreseeable to respondent - No unjustified disadvantage" |
| Result | Application granted ; Compensation for humiliation etc ($15,000) ; Parties directed to mediation ; Leave reserved regarding other remedies ; Costs reserved |
| Cases Cited | Carter Holt Harvey Ltd v Yukich unreported, McGrath, Hammond, O'Regan JJ, 28 April 2004, CA 42/04;Yukich v Carter Holt Harvey Ltd [2004] 1 ERNZ 78 |
| Number of Pages | 7 |
| PDF File Link: | aa 275_05.pdf [pdf 43 KB] |