| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 239/10 |
| Hearing date | 9 Nov 2010 |
| Determination date | 22 December 2010 |
| Member | J Crichton |
| Representation | R Davidson ; J Goldstein |
| Location | Christchurch |
| Parties | McNabb v Stones Fabric Industries Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed co-worker (“G”) made inappropriate remarks, often of sexual nature, to applicant – Subsequently respondent held disciplinary meeting with applicant regarding offensive remarks directed at G – Applicant spoke to husband (“H”) who attended workplace next day and assaulted G – Respondent issued applicant formal written warning for inciting violence against G – Subsequently applicant resigned claiming workplace unsafe – Applicant claimed unjustifiably disadvantaged by respondent’s investigation into assault and subsequent meeting – Authority accepted respondent’s argument applicant at no time complained to respondent about G’s behaviour – Found evidence only supported conclusion respondent confronted applicant about own behaviour towards G – Found great difficulty accepting applicant bullied, intimidated, or suffered crude remarks from applicant – Co-worker gave evidence applicant received text message from H asking whether to come and sort out G – Authority rejected applicant’s argument initial investigation unfair – Found clear deficit in employer’s process in failure to put evidence to applicant around applicant inciting H – Found applicant disadvantaged in that felt less secure in employment than should have felt following warning – Found drawing too long a bow to contend applicant responsible for incitement because no other explanation for assault – Found warning failed to address fundamental nexus between assault and applicant’s alleged involvement – Found nothing in what H told respondent suggesting incited by applicant to assault G – Found applicant unjustifiably disadvantaged – Found difficult to categorise respondent’s behaviour as dismissive or repudiatory – Found respondent acted in genuine and well meaning attempt to restore employment relationship – Found no constructive dismissal – REMEDIES – Found difficult to escape conclusion applicant architect of own misfortunes – Found 100 percent contributory conduct – Found if applicant had behaved properly by addressing concerns with respondent or by failing to grumble to husband events would not have happened – No remedies awarded – Clothes Sorter |
| Result | Application granted (Disadvantage) ; Application dismissed (Dismissal) ; Remedies reduced to 0 (100 percent contributory conduct) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124 |
| Cases Cited | Alliance Freezing Company (Southland) Ltd v NZ Amalgamated Engineering etc;IOUW [1989] 3 NZILR 785 ; [1990] 1 NZLR 533 ; (1989) ERNZ Sel Cas 575 (CA);Wellington Clerical IUW v Greenwich [1984] ACJ 347 |
| Number of Pages | 11 |
| PDF File Link: | ca 239_10.pdf [pdf 40 KB] |