A production manager was suspended and dismissed for serious misconduct after swearing and verbally abusing a co-worker on several occasions. The co-worker made a complaint after he was physically intimated by the employee after he blocked him from leaving the room.

The Employment Relations Authority has upheld the employee’s personal grievance claim for unjustified dismissal and unjustified disadvantage.

The ERA held that although the employee had been verbally abusive, the co-worker had also yelled, sworn and made threatening physical gestures. The ERA found that the employer had made inadequate inquiries into this, and had disregarded evidence supporting the fact that both workers were behaving inappropriately. The co-worker even acknowledged that foul language was normal in the factory, and the employee’s behaviour was not unusual within the workplace.

The ERA noted that there was no evidence that the co-worker was threatened or in danger of physical violence. The ERA therefore concluded that the employee’s behaviour was unlikely to constitute serious misconduct.

The ERA held that the employer followed a flawed process when dismissing the employee. The employer failed to properly put all of its concerns to the employee and referred to statements which were supposed to have been discounted. The employer also heavily relied on one statement which was inconsistent with other witness reports, and failed to question all key witnesses. Alternatives to dismissal and the employee’s response were also not adequately considered. Consequently, the ERA found the outcome of the decision to have been predetermined.

The ERA held that the employee suffered disadvantage in his employment because of his suspension and the fact that it was predetermined.

The ERA ordered that the employee be reinstated to his former position and awarded over $7,200 for lost wages and $6,000 for lost bonuses plus $5,000 compensation for humiliation, loss of dignity and injury to feelings.


Alan Knowsley

Employment Lawyer Wellington