| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 185 |
| Hearing date | 2 Nov 2011 |
| Determination date | 21 November 2011 |
| Member | G J Wood |
| Representation | J Greally ; L Simpson |
| Location | Wellington |
| Parties | Harrison v Grimes & Browning Joinery (2000) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed after abused and threatened co-worker (“X”) with violence – Authority found due to nature of employment bad language was rife – X used profanities when spoke to applicant and applicant gave similar response – Witness reported matter to applicant’s manager and respondent’s financial controller (“S”) – X claimed applicant had threatened X with violence including threat to kill – Second witness claimed applicant had threatened physical violence but did not give details - S called Department of Labour for advice and was told that applicant’s conduct could amount to serious misconduct but not told to first ask for applicant’s explanation of events – Applicant claimed had only responded to X’s abuse with similar language – Applicant told by manager was dismissed as had threatened X - Respondent decided applicant’s work not up to standard and did not pay applicant in lieu of notice – Authority found respondent had to be satisfied on balance of probabilities and to high standard that applicant had threatened X due to seriousness of allegations – Found evidence did not show were threats to kill or threats of serious physical violence but noted X much older than applicant and of frail build – Found applicant’s behaviour extremely threatening to X - Found respondent failed to meet procedural requirements – Found respondent did not come to fair and reasonable conclusion as did not first hear from applicant - Dismissal unjustified - REMEDIES – 25 per cent contributory conduct - $3,000 compensation appropriate, starting amount reduced due to respondent’s financial difficulties - $5,427 reimbursement of lost wages appropriate – Reduction for contributory conduct excluded outstanding wage payment in lieu of notice - ARREARS OF WAGES – Applicant sought arrears of wages - Applicant claimed had been promised wage increase after had worked for respondent for 90 days – Respondent claimed told applicant would review pay after 90 days - Found respondent did not promise applicant wage increase – No arrears of wages - Joiner |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (25%) ; Reimbursement of lost wages ($5,946 reduced to $5,427.50) ; Compensation for humiliation etc ($4,000 reduced to $3,000) ; Application dismissed (arrears of wages) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | John v Rees [1970] Ch 345;Madden v NZ Railways Corporation [1991] 2 ERNZ 690;NZ (with exceptions) Food Processing etc IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Wellington_185.pdf [pdf 39 KB] |