| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 204/10 |
| Hearing date | 19 Oct 2010 - 28 Oct 2010 (2 days) |
| Determination date | 09 November 2010 |
| Member | P Cheyne |
| Representation | R Thompson ; P Shaw |
| Location | Christchurch |
| Parties | Dalley v Norrell Building Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant foreman on building site - Applicant had verbal altercation with apprentice carpenter (“X”) that resulted in applicant pushing X - Part of incident viewed by clients who were on site inspecting progress - Straight after incident X phoned respondent’s managing director (“N”) about incident – N spoke with X, then spoke with applicant - N instructed applicant to apologise to X - Next day N spoke to employee witness about incident - N decided to meet with applicant and X - Applicant advised could not attend meeting at that time - N initially insistent applicant meet at time specified - Parties eventually agreed applicant would call N at specified time to arrange time to meet - N met with X and got his full account of incident - N summarily dismissed applicant by phone without meeting with him - Dismissal subsequently confirmed in writing - Respondent claimed applicant dismissed because pushed X during heated argument, did not comply with instructions to speak with and apologise to X, was rude to clients who witnessed incident, and failed to act in respondent’s best interests as its foreman - Authority found applicant never told at risk of dismissal - Found not given X and witness accounts of events to respond to - Found applicant not given real opportunity to either refute allegations or explain or mitigate conduct - Found allegations about blatant disregard for authority and rudeness to clients never put to applicant while point about being foreman was mentioned obliquely at best - Found respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - Authority found applicant contributed to situation giving rise to grievance in blameworthy way - Found applicant unnecessarily aggravated situation - Found applicant knew clients present on site and could have used that to diffuse situation before became heated - Found as foreman failure to do so significant - Found applicant should have apologised to X when directed to - Found applicant should have been more communicative and responsive to N’s attempts to organise meeting - Found two thirds contributory conduct - Applicant sought lost remuneration from date of dismissal until moved to Australia - Found applicant’s decision to move to Australia resulted in withdrawal of offer of work - Found that broke chain of causation, so that applicant’s lost remuneration not result of grievance but result of decision to move to Australia - Applicant not entitled to reimbursement of lost wages - Applicant sought $10,000 compensation - Authority found applicant’s evidence somewhat exaggerated effect of dismissal - Authority accepted applicant surprised by dismissal, concerned about financial commitments, humiliated by being dismissed over phone and experienced loss of sleep - Found $7,000 compensation, reduced to $2,300 for contribution, appropriate - Foreman |
| Result | Application granted ; Compensation for humiliation etc ($7,000 reduced to $2,300) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A(2);ERA s63A(2)(3) |
| Cases Cited | Ballylaw Holdings Ltd v Henderson [2003] 1 ERNZ 313;Housham v Juken New Zealand Ltd [2007] ERNZ 183;Murphy v Steel Tube NZ Ltd (2007) 4 NZELR 719;NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 ; (1990) 3 NZELC 97,567 ; (1990) ERNZ Sel Cas 582 |
| Number of Pages | 11 |
| PDF File Link: | ca 204_10.pdf [pdf 48 KB] |