Mr H. and Mr N. were both at work and no-one saw the fight. Mr N. claimed that he threw a large leather glove at Mr H. whilst he was driving the hoist because Mr H. almost collided with him. Mr H. was unaware of the reason for the throwing of the glove that struck him in the back of the head. The two men began yelling at each other. Mr H. claimed that Mr N. was going to get onto the moving hoist and fearing an assault he attempted to push him away with a hand to the chest. Mr H.’s evidence was that he held Mr N.’s head down on the hoist seat to try to stop him punching him.
There was a meeting and Mr H. was accompanied by a union delegate. Mr H. gave an account of what happened. The meeting included an attempt to re enact the fight .and the employer concluded that he should be dismissed.
The employment agreement included a clear rule against fighting and serious misconduct included any act of physical violence “includes fighting, even if provoked”. The employer also had what it described as a “zero tolerance” policy towards work place violence. The employer relied heavily on these rules when justifying the dismissal.
The Employment court confirmed that although an employer may properly regard assault or physical aggression and fighting as serious misconduct which might result in an employee being dismissed, that cannot reasonably extend to every participant in such a confrontation under any circumstances.
No hard and fast rules can or should be provided. Every case is different and what amounts to a reasonable response to actual or impending violence will depend on those unique circumstances as fairly and reasonably ascertained by the employer.
In other words an employer can’t have a zero tolerance policy towards anything that’s leads to the situation “If you do X you will be dismissed “. The employer still has to look into the circumstances and make a decision.
This case was heard in March 2007 and Chief Judge Colgan assessed that there should be an award of compensation of $20,000.00. This was a significant award of compensation. The Judge was satisfied that the consequences upon Mr H. of his dismissal resulted in sleep difficulties, separation from his domestic partner at the time, depression and weight loss.
I will be giving a free seminar on employment law on the evening on 1 October. E-mail Kendyl at Venture Southland to book your place (kendyl@venturesouthland.co.nz) or call 211 1400.
