| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 309/07 |
| Hearing date | 8 Aug 2007 |
| Determination date | 05 October 2007 |
| Member | V Campbell |
| Representation | M Nutsford ; A Aitken |
| Location | Hamilton |
| Parties | Martin v Cook & Galloway Engineers Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Misconduct - Applicant involved in confrontation with co-worker – Both men dismissed - Respondent aware of deteriorating relationship between applicant and co-worker but did not respond to numerous complaints laid by both men during employment – Investigated altercation and concluded co-worker acted in threatening manner, but applicant did not diffuse situation, instead exacerbated it by threatening co-worker with sparks from grinder - Co-worker subsequently convicted of assault with intent – As result of injury applicant on leave and received ACC – Called to what he believed was investigation into co-worker’s actions, had no idea could face dismissal as result of explanation – Respondent conceded did not meet all procedural fairness requirements - While applicant breached health and safety obligations by showering co-worker in sparks, fair and reasonable employer would have taken into account co-worker’s actions in moving into area where grinder being used, especially as armed with steel bar – Those actions, plus earlier threats and unmerited accusations tipped balance of blame in favour or co-worker – Respondent had obligation to take all practicable steps to ensure co-worker did nothing to cause harm or injury to applicant at work - Failed to provide safe work environment – Dismissal unjustified – Remedies – Contributory conduct 10 percent |
| Result | Application granted ; Reimbursement of lost wages ($4,403.22 reduced to $3,962.90) ; Compensation for humiliation etc ($3,000 reduced to $2,700) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;HSE s19 |
| Cases Cited | Morris v Christchurch Airport Limited unreported, Goddard CJ, 24;June 2004, CC13/04 |
| Number of Pages | 9 |
| PDF File Link: | aa 309_07.pdf [pdf 33 KB] |