| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 323/05 |
| Hearing date | 4 Aug 2005 |
| Determination date | 24 August 2005 |
| Member | L Robinson |
| Representation | P Pa'u ; P Tremewan |
| Location | Auckland |
| Parties | Faamatuainu v Croxley Stationery Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - COMPLIANCE ORDER - Applicant assaulted by co-worker after calling her a “slut” - Respondent held meeting and advised both parties that they could be dismissed and directed them to resolve matter themselves - Mutual apologies and hugs and kisses - Both issued with final written warnings - Applicant did not return to work as unhappy with resolution - Sought compliance order requiring respondent to comply with duty of good faith towards applicant by dismissing co-worker - Wrong for respondent to regard applicant as equally blameworthy - Assault was criminal behaviour but name-calling was not - Respondent’s handling of matter misguided but well-intentioned as wished to preserve employment relationships with parties involved - Respondent entitled to decide appropriate disciplinary action for co-worker - No breach of good faith by failure to dismiss co-worker - Compliance order not appropriate - Applicant’s final written warning failed to comply with collective employment agreement or house rules as did not detail incident or applicant’s explanation - Applicant not advised of formal allegation against her in respect of warning - Explanation not sought - No investigation or disciplinary process - Written warning was unjustified disadvantage - No answer for respondent to say disciplinary procedure not formally invoked because of apparent reconciliation between parties - Formal warning must always be preceded by full and fair investigation - Remedies - Contributory conduct 25% - Compensation for receiving warning awarded although much of applicant’s evidence related to anxiety and trauma about assault itself - Reinstatement not appropriate remedy as no dismissal - Respondent expected to make appropriate arrangements to ensure applicant’s safety upon return to work - Stationary company shift worker |
| Result | Application granted ; Compensation for humiliation etc ($3,000 reduced to $2,250) ; Costs reserved |
| Statutes | ERA s123(1)(c)(i);ERA s124 |
| Number of Pages | 6 |
| PDF File Link: | aa 323_05.pdf [pdf 66 KB] |