| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 60/07 |
| Hearing date | 6 Dec 2006 |
| Determination date | 06 March 2007 |
| Member | K Raureti |
| Representation | J Singh (in person) ; N Cervin |
| Location | Auckland |
| Parties | Singh v Frucor Beverages Ltd |
| Summary | RACIAL HARASSMENT - Applicant submitted no problems at work until new manager started - Raised four matters: isolated swearing incident, timing applicant while worked, distribution of Easter eggs and request for new overalls - Authority not satisfied swearing incident occurred - Even if did occur, not within s109 Employment Relations Act 2000 description of racial harassment - Other incidents did not separately or cumulatively amount to racial discrimination - UNJUSTIFIED DISADVANTAGE - First disciplinary meeting called to discuss high level of absenteeism - Respondent supportive of applicant's circumstances and formulated action plan to work with him - Following week applicant took two sick days - Second disciplinary meeting held and applicant issued with first written warning - Issuing warning so soon after committed to working together premature and unjustified - Disadvantaged as warning had significant impact of subsequent disciplinary meetings - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Misconduct - Dismissed for driving truck in manner that damaged property and for stacking pallets in potentially dangerous manner - Respondent considered these wilful or negligent acts that affected safety and quality - Prior to dismissal received final warning for hitting co-worker with truck - Affect of incorrect stacking overstated - Did not create serious hazard to all employees working in area - Matter escalated to one where dismissal possible because on final warning - Unlikely matters serious enough to warrant disciplinary meeting for serious misconduct in isolation - Unjustified first warning escalated every action after it - Dismissal unjustified - Remedies - Respondent large employer and on notice reinstatement sought - Reinstatement not impracticable, even though another employee appointed to position - Reinstatement ordered to former position, or one no less advantageous - Parties encouraged to attend mediation to assist return - Contributory conduct 30 percent - Storeman |
| Result | Application dismissed (Racial harassment) ; Application granted (Disadvantage and dismissal) ; Reinstatement ordered ; Reimbursement of lost wages (4 months less earnings, reduced by 30%) ; Compensation for humiliation etc ($1,000 reduced to $700) ; Disbursements in favour of applicant ($70)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s109;ERA s125;ERA s125(2) |
| Cases Cited | Air New Zealand Ltd v Hudson (2006) 3 NZELR 155 |
| Number of Pages | 10 |
| PDF File Link: | aa 60_07.pdf [pdf 62 KB] |