| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 107/09 |
| Hearing date | 16 Mar 2009 |
| Determination date | 03 April 2009 |
| Member | R A Monaghan |
| Representation | M Kyriazopoulos ; P Tremewan |
| Location | Auckland |
| Parties | Ngatama v Acrow Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Misconduct – Applicant claimed dismissal disproportionate to conduct – Respondent claimed failure to follow safety requirements amounted to serious misconduct justifying dismissal – Applicant senior scaffolder and employed under collective employment agreement (“CEA”) – CEA included provisions for “Zero Tolerance Regulations” and “Less Serious Misconduct” which included failure to follow safety requirements – Applicant attended re-induction meeting concerning safe practices in scaffolding – Meeting advised workers external handrails must be installed and harness must be worn when walking on planks - Applicant on duty when saw plank not properly installed – Applicant walked on plank to correct plank’s position – Applicant not wearing harness and no external handrail had been installed – Co-worker (“G”) saw incident but took no action – Supervisor saw incident and reported to Safety Manager (“W”) – Applicant and G received letter requiring attendance at disciplinary meeting and warned of dismissal – Applicant and G sent to another worksite pending investigation – Applicant admitted not wearing harness at first disciplinary meeting – Meeting discussed why G did not react to incident – Second disciplinary meeting – Issues of why no harness worn when spare harness kept on-site and applicant’s record of misconduct concerning safety raised – Third disciplinary meeting – Applicant dismissed – G received written warning - Respondent made decision to dismiss based on applicant’s senior experience and company’s emphasis on safety – Applicant claimed dismissal disproportionate to conduct – Authority found despite conduct falling within “Less Serious Misconduct” in CEA, dismissal still fair and reasonable – Applicant knew importance of safety to respondent – Applicant had sufficient training, including recent re-induction in safety – Respondent had obligations to contractors and breach of obligations would result in consequences for both parties – Applicant’s seniority increased seriousness of conduct – Applicant claimed conduct was to correct hazard – Found conduct still breached safety requirements and others were present to address problem – Applicant claimed disparity of treatment with G vitiated justification for dismissal – Found nature of G’s conduct different from applicant’s therefore less serious – Applicant claimed disparity of treatment in sending applicant to work on another site - Found no disparity and no inappropriateness in sending applicant to different worksite pending investigation – Dismissal justified – Scaffolder |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Northern Distribution Union v BP Oil NZ Limited [1992] 3 ERNZ 483 |
| Number of Pages | 8 |
| PDF File Link: | aa 107_09.pdf [pdf 28 KB] |