| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 157 |
| Hearing date | 25 Nov 2010 |
| Determination date | 15 April 2011 |
| Member | D King |
| Representation | K Murray ; R Kroon |
| Location | Auckland |
| Parties | Hatch and Ors v Oceania Care Company (No 1) Ltd |
| Other Parties | McCann, Mooney |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct - Racial discrimination – Applicants (“H”, “M1”, and “M2”) claimed unjustifiably dismissed - Sought claims determined together – Respondent received complaints that applicants had made racist remarks about manager (“N”) - N Fijian Indian – Complainants alleged applicants said N “not going to hire any white people” and referred to N as “red dot special” – Evidence of three complainants consistent but majority of evidence not attributed to particular applicant – Applicants invited to attend disciplinary process - N involved in initial stages of disciplinary process – H noted had issue with N and wanted positive outcome – Stated wanted to continue employment – Claimed N derogatory towards staff and concerned about treatment of staff – Complainants allegedly threatened by applicants - H acknowledged had complained about N but not that N racist - Further evidence from other employees N overheard saying white people were lazy - Respondent informed H her allegations would be investigated but complaint against H dealt with first – Issues with N dealt with after applicants dismissed – N gave evidence had never felt victimised or noticed racism – M1 and M2 claimed comments about “red dot special” about Farmers’ sale, not N – M2 claimed bullied by N - M2 claimed made general threat but did not know who complainant was – Respondent claimed obvious was racial tension at workplace and comments had been made by applicants – Respondent claimed no evidence complainants colluded – Claimed applicants’ behaviour serious risk to respondent and incited racial discrimination amongst other employees – Did not believe facilitation between parties an option – Claimed considered applicants individually but also as group and had to take same action against all applicants – Claimed applicants had engaged in serious misconduct and undermined N – Claimed had breached implied terms of trust and confidence – Authority noted respondent did not assess circumstances of each applicant – No evidence respondent had followed up on allegation N had said some employees lazy – Found N treated more leniently than applicants - Noted at meetings neither M1 or M2 told that perceptions of N incorrect – Found no evidence that applicants had encouraged other employees to make racist comments – Found applicants’ behaviour did not amount to racial harassment under Employment Relations Act 2000 or Human Rights Act 1993 – No evidence comments had detrimental impact on N – N should not have been involved in disciplinary process – Reasonable employer would have organised mediation and no evidence H intended to incite other employees to behave same way – No evidence applicants undermined N – Applicants not given chance to respond to proposition undermined N – Not given opportunity to comment on sanction of dismissal – Failure to follow up on actions of N – Dismissals unjustified – REMEDIES – No contributory conduct as incomplete investigation by respondent - Reimbursement of lost wages appropriate – Compensation for humiliation appropriate - H (Administrator) ; M1 (Cleaner) & M2 (Laundry N) |
| Result | Applications granted ; Reimbursement of 13 weeks lost wages (H $8,417.50) (M1 13 weeks) (M2 $7,228) ; Compensation for humiliation etc (H & M1 $3,000) (M2 $4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(A);Human Rights Act 1993 |
| Cases Cited | Northern Distribution Union v BP Oil NZ Ltd [1992] 3 ERNZ 483;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311 |
| Number of Pages | 18 |
| PDF File Link: | 2011_NZERA_Auckland_157.pdf [pdf 51 KB] |