The Employment Court has overturned the Employment Relations Authority and held that a worker dismissed for punching a colleague was unjustifiably dismissed.  The ERA had found the dismissal justified.

The employee had been hit in the eye by a rubber band.  He punched the colleague in the head as a reaction to being hit in the eye.

No complaint was made by the victim of the punch, and no investigation was carried out by the employer until about 10 days later.

The employer failed to properly investigate what had occurred e.g. was the rubber band flicked deliberately by the colleague, which would be relevant to provocation.

They also did not ascertain where the workers were standing when the incident occurred, which was relevant to the punch being a reflex action rather than deliberate retaliation.

The employer also failed to properly record the various interviews that took place.  One major error was recording that the employee was not remorseful and that the punch was deliberate.

A transcript, made from an actual recording of the interview, did not contain these statements and instead showed that the punch was an instinctive reaction.

The Court held that the defects in the process followed were so serious that the employer’s decision to dismiss was not one that a reasonable employer could have made.

The Court declined to reinstate the employee, despite his 25 years service and clean record, due to the danger of repeat behaviour, but awarded three months lost wages and $10,000 compensation.

The Court reduced those awards by 70% due to the actions of the employee contributing to the situation.