| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 138/06 |
| Hearing date | 3 Aug 2006 |
| Determination date | 12 September 2006 |
| Member | R Arthur |
| Representation | T Wilton ; S Langton |
| Location | Christchurch |
| Parties | McClelland v The Supply Chain Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Misconduct - Dismissed after respondent investigated applicant's complaint co-worker (B") threatened him and kicked car - Respondent found applicant breached company rules by creating situation where confrontation inevitable - Concluded provoked B and accepted challenge to fight - Conclusion not one fair and reasonable employer could reach - Relied on causative steps that could not be not properly established or assumed - Respondent properly placed aside some comments allegedly made by applicant, but Authority not satisfied weight placed on comment applicant "looking forward" to fight what fair and reasonable employer would have done - Applicant claimed not really after a fight and comment "just talk" - Fair and reasonable employer would consider explanation plausible and give it more weight - Evidence employer could reasonably rely upon not sufficient to support finding actions outside tolerated range of 'workplace banter' - Misconduct finding not justified - Respondent acknowledged but for existing warnings would not have dismissed for level of misconduct that occurred - Fair and reasonable employer would not dismissed - Dismissal unjustified - Remedies - In assessing lost wages Authority made allowance for prospect applicant would have been dismissed soon for poor performance - Contributory conduct - Applicant responsible for initiating banter that led to altercation - Warnings for poor performance also factor - Contributory conduct 80 percent - COSTS - One day investigation meeting - Costs at lower end of usual daily tariff warranted - Length of service not specified - Operator" |
| Result | Application granted ; Reimbursement of lost wages (Five weeks reduced to one) ; Compensation for humiliation etc ($3,000 reduced to $600) ; Costs in favour of applicant ($1,500) ; Disbursements ($70)(Filing fee) |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand Ltd v Hudson (2006) 3 NZELR 155;Chief Executive of the Ministry of Maori Development v Travers-Jones [2003] 1 ERNZ 174;Kernohan v Asure New Zealand Ltd [2004] 2 ERNZ 472;Morris v Christchurch International Airport Ltd [2004] 1 ERNZ 336 |
| Number of Pages | 7 |
| PDF File Link: | ca 138_06.pdf [pdf 43 KB] |