| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 376 |
| Hearing date | 19 Jul 2011 |
| Determination date | 29 August 2011 |
| Member | E Robinson |
| Representation | H Ross (in person) ; K Thompson |
| Location | Auckland |
| Parties | Ross v Air New Zealand Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent’s failure to investigate alleged assault by co-worker (“U”) – Applicant employed in respondent’s International Cargo Operations Import section (“Cargo”) – Both Export and Import sections were members of Engineering, Printing and Manufacturing Union (“EPMU”) and Service and Food Workers Union (“SFWU”) but SWFU members in minority – Applicant SWFU delegate - Cargo was negotiating with EPMU and SWFU on pay proposal – Cargo’s manager (“K”) met with SWFU delegate (“S”) to discuss proposal – K claimed told S proposal confidential but S showed document to EPMU members who changed membership to SWFU – Applicant claimed overheard U say did not like unions and, when asked why by applicant, U replied unions for lazy people – Applicant claimed U then head-butted applicant – Applicant claimed told by S to report incident to management – K claimed applicant, S and U went to K’s office – K claimed applicant and U appeared angry but no indication applicant had been head-butted and, as knew S first-aider, assumed would have sought medical attention if required – K asked applicant to record incident in writing – S and applicant went to Police and laid complaint against U – K began investigation after received applicant’s written complaint of unprovoked assault and interviewed employees present when incident occurred – Witness (“T”) claimed had not seen head-butt and not noticed any blood when cleaned area – Witness (“M”) claimed U and applicant argued about SWFU negotiations and S and applicant provoked U – M claimed did not see head-butt and applicant appeared as normal – Witness (“X”) claimed heard applicant swearing at U, had not seen any blood and applicant not dazed – U denied head-butted applicant and claimed as applicant abusive U left room – U claimed witnesses would have been able to see U and only bumped applicant with arm when left – K claimed U concerned was “union motivated thing” - U and applicant suspended on full pay pending investigation outcome – K interviewed another witness (“A”) who claimed had heard applicant swearing at U, U remained calm and no head-butt occurred as would have seen it – A claimed S would not have seen incident clearly as had back towards applicant and U – K had meeting with applicant – Applicant denied swearing at U and claimed U bent down and head-butted applicant in nose and teeth – Applicant claimed Police observed when reported incident had small scratch on nose and some blood – K claimed when compared photos supplied by applicant allegedly after incident no different from photos taken before incident – Applicant gave K medical certificate stating applicant had contusion to nose and forehead – K interviewed S who claimed U stood up and head-butted applicant in face – S claimed applicant did not swear at U and most damage to applicant’s teeth – S gave K letter signed by other employees who had not witnessed incident but confirmed were told by S that U had head-butted applicant – K interviewed witnesses (“T” and “E”) who had not witnessed incident but confirmed told by A about head-butt – K re-interviewed A about inconsistent evidence – K claimed clear A pressured by co-workers and relevant T and E SWFU members – K recorded all evidence and set out conclusions in ‘findings’ document – K’s conclusions included no physical evidence of incident and was unexplained expediency in going to K’s office rather than seeking immediate medical attention - U moved to Export section to avoid contact with applicant – K met with applicant and provided applicant with copy of ‘findings’ including conclusion not head-butted by U, reminded applicant of inappropriateness of swearing and told applicant to return to work next day – U changed not guilty plea to guilty and claimed did so to receive discharge and resolve matter – K claimed U’s guilty plea did not affect investigation – Applicant sent further information to respondent’s chief executive officer (“F”) including statement from another co-worker (“O”) – O claimed told by co-worker (“Z”) had called A about changing story – K interviewed O, Z and A again – K claimed Z denied told O had called A to ask to change statement – K decided not to re-open investigation – Authority found option of suspending applicant and conclusion A pressured by co-workers to change evidence available to fair and reasonable employer in all circumstances – Found K’s decision not biased or pre-determined and applicant had representation at all meetings – Found K’s failure to refer applicant for medical attention not fatal to investigation as no physical damage to applicant and S experienced first aider – Found significant that neither applicant or S requested medical attention and instead went to Police station – Found Police investigation separate process with separate standards of proof – Found overall respondent’s actions those of fair and reasonable employer – Applicant claimed unjustifiably disadvantaged by shift change and further training after investigation – No unjustified disadvantage - Cargo Airline Clerk |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103(1)(b) |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;Fuiava v Air New Zealand Ltd [2006] ERNZ 806;New Zealand (with exceptions) Food Processing IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35;The Warehouse Ltd v Cooper [2000] 2 ERNZ 351;Victoria University of Wellington v Haddon [1996] 1 ERNZ 139;Wellington Area Health Board v Wellington Hotel, Hospital, Restaurant & Related Trades IUOW [1992] 2 ERNZ 466 |
| Number of Pages | 20 |
| PDF File Link: | 2011_NZERA_Auckland_376.pdf [pdf 66 KB] |