| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 433/10 |
| Hearing date | 9 Sep 2010 |
| Determination date | 06 October 2010 |
| Member | E Robinson |
| Representation | P Blair ; D France |
| Location | Auckland |
| Parties | Burgess v Carter Holt Harvey Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed following investigation into fight with co-worker (“X”) - X received final written warning - Applicant claimed dismissal unjustified - Claimed respondent failed to take into account self defence claim and was disparity of treatment - Respondent argued dismissal justified - Argued fair and reasonable employer would not have found grounds for applicant’s self defence claim and disparity of treatment justified - Applicant and X union members and covered by collective employment agreement and code of conduct and work rules - Work rules prohibited use of physical violence - Authority found sufficient evidence in applicant’s explanations, for respondent, as fair and reasonable employer, to reach conclusion substantive grounds existed for deciding applicant breached work rule prohibiting violence - Found breach of work rule constituted serious misconduct and justification for summary dismissal - Respondent stated had zero tolerance attitude towards fighting and violence but that employee entitled to defend themselves - Applicant claimed respondent erred in finding applicant aggressor and X acting in self defence - Found X provided respondent with explanations consistent with position of self defence - Found applicant’s self defence argument not substantively presented to respondent during investigation and disciplinary process - Found employer could not reasonably be expected to find self-defence when that explanation not provided to it - Found respondent did not unjustifiably fail to take into consideration applicant’s self defence explanation - Applicant claimed disparity of treatment with X - Claimed should have also received final written warning - Respondent found X breached work rule prohibiting abusive language to another employee - Therefore gave X lesser disciplinary sanction apply to breach of that rule - Respondent concluded applicant breached work rule prohibiting fighting or use of physical violence which was more serious offence than use of abusive language so resulted in more serious sanction - Authority found adequate explanation for disparity of treatment - Found respondent’s actions those of fair and reasonable employer - Dismissal justified - Spare Operator |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415;Chief Executive of the Department of Inland Revenue v Buchanan and Anor [2005] ERNZ 767;Cooke v Tranz Rail Ltd (formerly NZ Rail Ltd) [1996] 1 ERNZ 610;Housham v Juken New Zealand Ltd [2007] ERNZ 183;Samu v Air New Zealand Ltd [1995] 1 ERNZ 636;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 14 |
| PDF File Link: | aa 433_10.pdf [pdf 43 KB] |