| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 32 |
| Hearing date | 14 Dec 2010 |
| Determination date | 04 March 2011 |
| Member | P R Stapp |
| Representation | J Unsworth ; P McBride |
| Location | Wanganui |
| Parties | Oskam v Idea Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant claimed asked service user (“S”) to move as blocking access to toolbox and when S refused applicant placed hands on S’s shoulders to redirect S – Respondent claimed applicant physically manhandled S against S’s will and raised voice and spoke in aggressive manner – S flicked hands up to remove applicant’s grip and struck applicant on side of face – T removed S from office – C claimed arrived during incident but did not see or hear anything – C and R claimed would have heard incident if occurred the way T claimed – T claimed C arrived after incident – Applicant invited to attend disciplinary meeting – Respondent took into account previous complaints about applicant – Applicant dismissed – Authority found fair and reasonable employer would come to honestly held belief to accept what T said had occurred – Found fair and reasonable employer would not have come to honestly held belief based on information available at time of incident – Found incident report delayed, applicant disputed extent of what happened, witness did not hear anything, and C’s evidence to be treated with caution - Found no procedural irregularity – Found not open to respondent to consider dismissal – Found fair and reasonable employer would not have categorised applicant’s behaviour as serious due to conflict between witnesses – Found applicant counselled about previous matters and final warning not issued under Staff Policy and warning would have expired by time of incident – Found applicant’s behaviour not deliberate or wilful – Found respondent unable to establish loss of trust and confidence – Dismissal unjustified – REMEDIES – Applicant sought reinstatement – Respondent claimed applicant lacked maturity – Found applicant’s lack of maturity highlighted in incident following dismissal where applicant egged people’s houses – Found applicant twice changed evidence of involvement in matter – Found how applicant might react to other matters potential risk to respondent if applicant reinstated – Found reinstatement would cause tension and disharmony in workplace – No reinstatement – 100 percent contributory conduct – Found given physical reaction by S to applicant, more than likely applicant’s approach to situation inappropriate – Found applicant did engage with S inappropriately – 100 percent contributory conduct – No remedies awarded |
| Result | Application granted ; No remedies (100% contributory conduct) ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 14 |
| PDF File Link: | 2011_NZERA_Wellington_32.pdf [pdf 45 KB] |