| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 10/09 |
| Hearing date | 19 Dec 2008 |
| Determination date | 28 January 2009 |
| Member | H Doyle |
| Representation | K Chandler (in person) ; D Smith |
| Location | Kaikoura |
| Parties | Chandler v Prime Pine Kaikoura Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Summary dismissal - Serious misconduct – Co-worker (“D”) pushed applicant – Applicant made racist remark and stated if D put hands on applicant again, would injure D with hammer (“threat”) – Applicant reiterated threat at first disciplinary meeting and did not retract at later disciplinary meeting - Applicant dismissed – Manager at time (“C”) gave evidence would not have dismissed applicant for defamatory and racist language alone - Authority concluded that although dismissal letter stated dismissal for threat and racist language, real reason solely threat – Authority considered whether threat constituted serious misconduct – Found fair and reasonable employer must take relevant circumstances into account in making assessment about conduct and its seriousness – Relevant circumstances were D pushed applicant following heated exchange; applicant requested assistance from C; C initially passed it off as joke and did not respond; applicant and D separately approached C; both subject to disciplinary processes – Threat first made in heat of moment, but later reiterated and not retracted – Fair and reasonable employer would have concluded that threats serious – Respondent had health and safety obligations to D and serious injury could have resulted if threat carried out – Found threat amounted to serious misconduct - Applicant protested D only received final warning as outcome – Authority applied legal test for disparity of treatment – Found conduct arose from same circumstances – Applicant did not physically respond to push, but called C to intercede - Threat was to take matters into own hands if D assaulted applicant again – Authority objectively found disparity of treatment between D and applicant – File note of previous verbal warning to applicant was inadequate explanation for disparity of treatment – Respondent did not conclude that D intended to assault applicant nor find assault was accident – Authority found fair and reasonable employer would not have concluded that threat more serious than assault, as both serious matters – Found no adequate explanation for disparity in treatment – Authority considered whether dismissal justified notwithstanding no adequate explanation for disparity – Found fair and reasonable employer would not have arrived at different disciplinary outcome for D and applicant in circumstances – Dismissal unjustified – REMEDIES – Applicant’s language offensive and racially abusive – Threat intimidated co-workers and impacted on level of trust C and co-workers had in applicant – C previously spoke to applicant about unacceptability of screaming and yelling – Lesser penalty could only have been final warning – Sixty percent contributory conduct – Applicant claimed lost wages from date of dismissal to date of investigation meeting – Applicant received sickness benefit for short period then on unemployment benefit – No evidence of attempts to find other work – Found not a case where Authority would exercise discretion and award more than three months ordinary time remuneration – Awarded thirteen weeks wages, less sixty percent contributory conduct – Quantum to be determined – COSTS – Applicant represented self – Applicant entitled to filing fee - Forklift driver/factory hand |
| Result | Application granted ; Reimbursement of lost wages (7.8 weeks) ; Disbursements in favour of applicant ($70)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Chief Executive of Department of Inland Revenue v Buchanan (No 2) ERNZ [2005] 767 |
| Number of Pages | 11 |
| PDF File Link: | ca 10_09.pdf [pdf 46 KB] |