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Grant v Nelson Heights Ltd
19 Jul 2006, J Crichton, CA 105/06, (8 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant sold electrical goods at respondent's store - Three alleged instances of misconduct in handling of goods - Admitted alleged behaviour - Initially applicant indicated knew policy and procedures - Later tried to resile from statements - Applicant's evidence lacked credibility - Difficult for applicant to seriously contend unaware of policies - No disparity of treatment - Allegations supporting dismissal were examples of misconduct applicant acknowledged he knew were wrong - One allegation taken alone might not have grounded dismissal, but together represented course of conduct - Respondent justified in regarding as fundamental breach of duty of honesty and fair dealing - Had opportunity to resile from inappropriate behaviour - Length of service not specified - Sales consultant
Result: Application dismissed ; Costs reserved
Nathan v Ports of Auckland Ltd
26 Jul 2006, M Urlich, AA 251/06, (6 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed for assaulting colleague ("CD") - Respondent also investigated alleged provocation by CD - Applicant claimed respondent failed to adequately weigh provocation and provide safe workplace free from racial abuse - Authority satisfied full and fair inquiry into circumstances of assault - Assault not denied and code of conduct clear it could constitute serious misconduct - Decision applicant's actions were serious misconduct fair and reasonable - Respondent unequivocally condemned previous racist comments and advised staff of complaints process - Applicant did not use process - Open to respondent to conclude CD's comments did not excuse assault - Decision to dismiss fair and reasonable in circumstances - Dismissal justified - Authority accepted applicant's health and safety compromised by racist comments - However, risk to applicant's psychological health not foreseeable by respondent - No evidence respondent alerted to concerns - No written policy regarding racial harassment - Authority unable to make recommendation as no personal grievance - However, in interests of respondent and its workforce to develop policy - Given limited information provided to expert witness, Authority unable to place much, if any, weight on evidence - Length of service two years six months - Stevedore
Result: Application dismissed ; Costs reserved
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