| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 304/10 |
| Hearing date | 24 May 2010 - 25 May 2010 (2 days) |
| Determination date | 28 June 2010 |
| Member | D King |
| Representation | J Watson ; G Steele |
| Location | Auckland |
| Parties | Matthews v Hamilton City Council |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably dismissed following physical altercation with member of public (“M”) – Also claimed unjustifiably disadvantaged by suspension – Respondent argued applicant breached code of conduct which prohibited physical violence – M became abusive towards applicant when applicant proposed ticket for M’s car which had no warrant of fitness or registration – Applicant gave M opportunity to leave without ticket – Subsequently applicant had verbal altercation with M’s mother – M pushed applicant and grabbed applicant’s throat – Applicant punched M and M released grip on applicant – M grabbed applicant’s ticketing machine and threw it across street – Subsequently Police called – Applicant contacted manager and explained incident while waiting for Police – No Police action taken – Applicant called to meeting where explained incident to respondent – Applicant suspended without reasons or opportunity to respond – Applicant claimed used reasonable force to break hold of M – Respondent provided applicant with statement from unidentified witness and security camera footage – At disciplinary meeting, Applicant claimed had not assaulted anyone, acted in self defence, and did not provoke attack – Applicant subsequently dismissed – Respondent argued applicant showed no remorse punched member of public and had ample time to walk away – Authority found no provision in employment agreement for suspension – Found applicant did not respond to M’s verbal abuse – Found applicant would not have known incident was to escalate – Found assault on applicant largely ignored by respondent – Found applicant verbally abused then physically assaulted – Found force applicant used for purposes of self defence was reasonable in circumstances – Found inadequate consideration of defence by respondent – Found potentially damaging information not given to applicant for consideration – Found dismissal unjustified – Found applicant unjustifiably disadvantaged by suspension – Remedies – Found reinstatement of applicant would not detract from message that violence to be avoided – Reinstatement ordered – Found no contributory conduct – Found $4000 compensation appropriate for distress suffered as result of unjustified dismissal – Authority declined to make recommendations against respondent – Parking Warden |
| Result | Applications granted (Unjustified dismissal)(Unjustified disadvantage) ; Reinstatement ordered ; Reimbursement of lost wages (13 weeks) ; Compensation for humiliation etc ($4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Crimes Act 1961 s4;ERA s103A;ERA s123(1)(ca) |
| Cases Cited | Housham v Juken [2007] 1 ERNZ 183;Teao v Stormont's Bakeries Company Ltd unreported, Colgan J, 19 December 1995, AEC 133/95 |
| Number of Pages | 12 |
| PDF File Link: | aa 304_10.pdf [pdf 36 KB] |