| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 251/06 |
| Hearing date | 3 Apr 2006 |
| Determination date | 26 July 2006 |
| Member | M Urlich |
| Representation | S Mitchell ; P Skelton, K Laird |
| Location | Auckland |
| Parties | Nathan v Ports of Auckland Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed for assaulting colleague (CD") - Respondent also investigated alleged provocation by CD - Applicant claimed respondent failed to adequately weigh provocation and provide safe workplace free from racial abuse - Authority satisfied full and fair inquiry into circumstances of assault - Assault not denied and code of conduct clear it could constitute serious misconduct - Decision applicant's actions were serious misconduct fair and reasonable - Respondent unequivocally condemned previous racist comments and advised staff of complaints process - Applicant did not use process - Open to respondent to conclude CD's comments did not excuse assault - Decision to dismiss fair and reasonable in circumstances - Dismissal justified - Authority accepted applicant's health and safety compromised by racist comments - However, risk to applicant's psychological health not foreseeable by respondent - No evidence respondent alerted to concerns - No written policy regarding racial harassment - Authority unable to make recommendation as no personal grievance - However, in interests of respondent and its workforce to develop policy - Given limited information provided to expert witness, Authority unable to place much, if any, weight on evidence - Length of service two years six months - Stevedore" |
| Result | Application dismissed ; Costs reserved |
| Statutes | ERA s103A;ERA s123(1)(ca) |
| Cases Cited | Central Clerical etc IUOW v EV McConnell Ltd (t/a Bridge Service Station) [1990] 3 NZILR 1048 |
| Number of Pages | 6 |
| PDF File Link: | aa 251_06.pdf [pdf 38 KB] |