| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 233/10 |
| Hearing date | 2 Feb 2010 |
| Determination date | 19 May 2010 |
| Member | V Campbell |
| Representation | A McInally ; P Connor |
| Location | Auckland |
| Parties | van der Griend v Parker Hannifin (NZ) Ltd |
| Summary | UNJUSTIIFED DISMISSAL – Serious misconduct – Applicant claimed harassment allegation unfounded and dismissal procedurally unjustified – Respondent argued applicant physically intimidated female employee (“X”) constituting serious misconduct – Altercation occurred between applicant and employee (“Y”) – Both parties lodged complaint about one another – No disciplinary action taken – Staff meeting held to advise employees safety gear must be worn at workplace – X arrived at workplace with no safety gear – Applicant advised X needed to wear appropriate gear – Parties discussed in applicant’s office problems within workplace – X declined to disclose employee who made complaint about applicant – Applicant made comments with physical gestures - X responded applicant’s action scared X – Applicant apologised – Applicant claimed X left office smiling – Few days later, respondent’s manager (“G”) requested applicant attend meeting to answer physical harassment allegation made by X – Applicant prepared written explanation – Applicant’s information passed to respondent’s senior manager (“M”) in Australia – M concluded, based on G’s information, applicant’s behaviour constituted serious misconduct – Applicant dismissed – Authority found alleged “aggressive argumentative” conduct constituted misdemeanours warranting written warning under respondent’s conduct code – Found fair employer would classify conduct as misconduct - Found dismissal procedurally unjustified as applicant not given opportunity to be heard by decision maker – Found M and G had suppositions about why applicant allegedly acted aggressively however supposition not put to applicant – Found M made dismissal decision based on information from G – Dismissal unjustified – REMEDIES – Applicant sought reinstatement – Respondent argued reinstatement not practicable as X would resign if applicant reinstated – Authority found applicant’s record blemish-free – Found applicant and X worked in different departments – Found applicant and X only required to be together at training where other employees would be present – Reinstatement ordered - Found no contributory conduct as accepted applicant did not act aggressively towards X - Found not liable for respondent’s failure to apply code correctly – Reimbursement of 33 weeks lost wages – Reimbursement of two bonus payments applicant would have received but for dismissal - $7,000 compensation appropriate – Team Leader |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages ($49,170)(33 weeks) ($680)(Bonus payment 1) (Quantum to be decided)(Bonus payment 2) ; Compensation for humiliation etc ($7,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand Limited v Hudson [2006] 1 ERNZ 415;Toll New Zealand Consolidated Ltd v Rowe unreported, 19 December 2007, Shaw J, AC 39A/07;X v Auckland District Health Board [2007] 1 ERNZ 66 |
| Number of Pages | 9 |
| PDF File Link: | aa 233_10.pdf [pdf 30 KB] |