| Summary |
UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed following incident with co-worker – Respondent experienced problems with applicant’s behaviour – Applicant received first verbal warning after incident with co-work (“S”) – Applicant did not accept warning and refused to apologise to S – Work relationship between applicant and S deteriorated with S claiming intimidation and bullying – Applicant and another co-worker (“T”) had altercation and applicant used abusive language – Respondent claimed issued final written warning for “threatening behaviour” and warned of dismissal if behaviour continued – Applicant argued no written warning received and respondent only advised “don’t behave like that again and don’t let it escalate like that again” – Applicant had second altercation with S – Respondent claimed applicant used abusive language, “stormed across hill with fists clenched” towards S and told respondent to “stick your job” – Applicant argued behaviour response to S’s abusive behaviour, denied “clenched fist”, yelling abuse and walking off job – Respondent went to applicant’s home and asked if applicant was returning to work – Applicant replied intended to return – Respondent did not ask applicant about incident – Two days later, applicant dismissed for “clash of personalities” – Respondent claimed earlier warnings discussed – Applicant argued no discussion about warnings took place – Authority found dismissal procedurally unjustified which led to wrongful conclusion of serious misconduct – Found respondent did not follow warning process in employment agreement: (i) verbal warning; (ii) written warning; (iii) termination letter – Found verbal warning issued following first incident with S – Found written warning not issued following incident with T – Found respondent raised concerns about behaviour but failed to clearly convey behaviour unacceptable – Found conclusion of serious misconduct following third incident unjustified – Found respondent did not give opportunity for explanation when visited applicant at home therefore led applicant to believe incident not serious - Found parties’ discussion at time of dismissal probably referred to applicant’s behaviour not earlier warnings – Found in the absence of explanation by applicant, a fair employer would not conclude serious misconduct – Respondent did not ask what triggered the reaction to S, what language used, whether assault intended – Dismissal unjustified – REMEDIES – Found 50 percent contributory conduct – Found applicant’s conduct towards S during final incident intimidating and took inappropriate actions instead of talking to respondent – Authority did not consider lack of remorse because no investigation undertaken – Found $5,000 compensation appropriate – No lost wages due to new employment obtained the week after dismissal – PENALTY – Authority declined penalty because claim not made within required statutory time – Tree Planter |