| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 164 |
| Hearing date | 15 Sep 2011 |
| Determination date | 31 October 2011 |
| Member | G J Wood |
| Representation | V Eades ; P Churchman |
| Location | Wellington |
| Parties | van den Ende v The Vintage Aviator Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent – Employee (“S”) claimed pushed into moving machinery by applicant – S threw metal bracket at applicant which hit applicant in eye – Both workers required medical attention off site – S had lacerated ear and bruising to leg – Applicant still unable to work due to significant damage to eye – Respondent conducted investigation into altercation – Applicant suspended – Authority found unclear why job at risk from suspension letter – Found respondent consented to late raising of disadvantage grievance – Found applicant unjustifiably disadvantaged because suspended in breach of employment agreement – Found applicant entitled to separate meeting about suspension – Found applicant shocked to be excluded from workplace – REMEDIES – No contributory conduct – $1,000 compensation appropriate – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant claimed S’s injuries self-inflicted – Applicant dismissed – Respondent took into account S did not try to minimise conduct – Respondent took into account applicant was senior employee and supervisor who could have done more to avoid issue – Found respondent unaware of S’s history of self-harm to avoid responsibility for actions – Found no bias against applicant – Found respondent not required to undertake any further investigations – Found no requirement to advise applicant of preliminary decision to terminate employment – Found applicant waived right to separate meeting to be informed of decision to dismiss – Found likely explanation for S’s injuries was that applicant pushed S into machine – Found still serious misconduct if injuries resulted from door being slammed shut which pushed S into machine – Found respondent’s decision that S’s injuries not self-inflicted what fair and reasonable employer would have concluded in all circumstances – Found fair and reasonable employer would have dismissed applicant – Dismissal justified – Welding Supervisor |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($1,000) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s122 |
| Cases Cited | Airline Stewards and Hostesses of NZ IUOW v Air New Zealand Ltd [1990] 3 NZILR 584;Chief Executive of the Department of Inland Revenue v Buchanan and Symes (No 2) [2005] ERNZ 767;Honda NZ Limited v NZ (with exceptions) Shipwrights etc Union [1990] 3 NZILR 23;Madden v NZ Railways Corporation [1991] 2 ERNZ 690;Unitec v Henderson unreported, Colgan CJ , 19 Mar 2007, AC 12/07;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Wellington_164.pdf [pdf 56 KB] |