| Summary |
UNJUSTIFIED DISMISSAL – Serious misconduct – Co-worker (“K”) alleged applicant head-butted him – Applicant claimed accidentally struck heads – Respondent investigated, and interviewed applicant, witnesses, and K – Respondent concluded applicant head-butted K and had to dismiss applicant or be seen to condone workplace violence – Applicant claimed investigation unfair and respondent should have believed his account – Also claimed not formally told of details of complaint or injuries, and not advised to obtain independent advice or interpreter - Claimed dismissal decision premeditated – Authority found deliberate assault in workplace amounted to serious misconduct unless clear was in self defence - Although respondent could have been clearer about inquiry, subject narrow in scope so no risk of confusion – Informed of entitlement to support person – Applicant previously served as support person in disciplinary meeting so aware of purpose – Reasonable for respondent not to suggest interpreter as prior employment dealings in English – Risk that respondent did not begin investigation with open mind counterbalanced by involvement in inquiry of further respondent employee – Decision not premeditated and no serious flaws in inquiry or disciplinary process – Respondent formed genuine belief that serious misconduct occurred, and conclusion reasonable on facts – No ulterior motive to end employment, rather losing applicant great loss to respondent – Applicant claimed disparity of treatment compared to similar incidents with other employees – No detail of previous occasions provided so Authority accepted respondent’s evidence that no similar prior occasions – Fair and reasonable employer would have dismissed applicant in circumstances – Dismissal justified - If wrong, misconduct so serious would have found 100 percent contributory conduct – COUNTERCLAIM - Recovery of Monies – Applicant claimed final holiday pay incorrect – Respondent reviewed pay records and counterclaimed that overpaid applicant – Respondent took over outstanding holiday obligations when applicant’s employment transferred in purchase of business – Authority found pay correct – Applicant’s claim related to balance carried forward from previous owner, which respondent unable to assess – Applicant’s recovery of monies claim lay with former employer – Counterclaim dismissed - Boat builder |