| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 73/08 |
| Hearing date | 1 Feb 2008 |
| Determination date | 29 February 2008 |
| Member | V Campbell |
| Representation | J Peebles ; A Toohey |
| Location | Hamilton |
| Parties | Bennett v NZ Mushrooms Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Summary dismissal – Incompatibility - Misconduct – Six months prior, applicant given warning letter regarding behaviour – Applicant underwent training regarding introduction of bullying policy – Applicant advised a supervisor (“J”) that wished to speak to trainer about issues relating to bullying – Request not revisited by respondent – Applicant overheard comment made by applicant’s supervisor (“T”) to co-worker (“S”) – Applicant made note of incident - Applicant showed note to co-workers – T filed incident report and made formal complaint about applicant’s behaviour – J told applicant T felt harassed and bullied as felt applicant encouraging co-workers to gang up on T – At first disciplinary meeting respondent advised applicant of investigation and process – Applicant explained wrote note because bullying training had advised to in case would be used as witness – At second disciplinary meeting, respondent put allegations to applicant - Support person raised concerns T bully – At final disciplinary meeting, respondent dismissed applicant, claiming applicant disruptive and disharmonious which led to serious incompatibility – Authority found case law regarding incompatibility showed employee must receive clear warnings that behaviour having detrimental effect on workplace, and that employee’s conduct must be strikingly serious – Found applicant received clear advice six months prior that inappropriate behaviour could lead to disciplinary action – Under employment agreement (“EA”), disciplinary action for inappropriate behaviour was usually warning, and after two warnings employee may be dismissed – Found applicant dismissed because T’s complaint found to have substance and respondent concluded no improvement in behaviour since prior warning – Found although applicant’s behaviour not as innocent as claimed, not at level for respondent to conclude destroyed trust and confidence - Found warning in accordance with EA was appropriate penalty – Found respondent did not take applicant’s allegations of bullying raised at second meeting seriously enough, as only briefly investigated then dismissed allegations – Dismissal unjustified – REMEDIES – Found S advised applicant that T apologised, but applicant continued to discuss incident with co-workers – Authority found 25 percent contributory conduct – Applicant claimed 17 weeks lost wages - Authority found applicant did not sufficiently mitigate loss – Found three months lost wages appropriate, subject to contributory conduct – Found dismissal humiliating and distressing for applicant after eight years service – Compensation appropriate – Mushroom picker |
| Result | Application granted (dismissal) ; Reimbursement of lost wages ($3,471.39 reduced to $2,603.54) ; Compensation for humiliation etc ($5,000 reduced to $3,750) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Buxton v Five Star Beef Limited (unreported, Palmer J, 20 January 1998, CEC 4/98);Harris and Skinner v Department of Corrections [2000] 1 ERNZ 544;Mabry v West Auckland Living Skills Home Trust Board Inc (unreported, Travis J , 19 December 2001, AC 86/01) |
| Number of Pages | 10 |
| PDF File Link: | aa 73_08.pdf [pdf 51 KB] |