Rulings send message to employers

By Sarah Townsend, Senior Solicitor

First published in the NBR, 8 February 2008

Employers investigating a stoush between staff will regularly be told, “he started it”, or “I was just defending myself”. Many believe, particularly where they have a ‘zero tolerance’ to violence, that any such behaviour at amounts to serious misconduct, justifying instant sacking.

But two recent Employment Court decisions highlight the need for a thorough and fair investigation into any physical violence at work and underline the difficulties with a ‘zero tolerance’ approach. In both cases, employees were fired for serious misconduct following a physical fight at work. The workers in each case said they were acting in defence against an assault or a perceived threat of assault – and that’s the sticking point.

In Housham v Juken NZ, Mr Housham was operating a mechanical fork hoist when a contractor, started shouting abuse and swearing at him. The contractor then threw his gloves at Mr Housham, the two men began yelling at each other and a fight ensued. Mr Housham said that the contractor punched him in the face, breaking his glasses. Afraid of being hit by the contractor, he tried to push him away. The contractor claimed that Mr Housham threw a punch at him before he responded in kind.

Juken’s code of conduct stated that “engaging in acts of violence against any person on company premises (note: includes fighting even if provoked)” amounted to serious misconduct. Juken NZ sacked Mr Housham for serious misconduct, saying that he “engaged in a situation of physical violence by pushing/striking another person on company premises”.

However, Mr Housham won his personal grievance for unjustified dismissal, and was awarded $20,000 compensation as well as 11 months’ lost wages.

A similar tale unfolded in Murphy v Steel & Tube New Zealand Limited. Mr Murphy started a verbal argument with a co-worker. Shortly afterwards, the co-worker approached Mr Murphy and pushed him from behind. Mr Murphy then struck the co-worker with his hand, sending him to the floor, bleeding. Mr Murphy said that he had not meant to harm his colleague and threw his arm behind him in self defence. Following an investigation, both employees were dismissed.

Steel & Tube concluded that the co-worker’s injuries meant that Mr Murphy had been aggressive and was fighting in breach of the company’s policies. Physical or verbal violence was described in the policy as amounting to serious misconduct.

Mr Murphy also won his personal grievance for unjustified dismissal. He was reinstated, awarded $4000 compensation and nine months’ lost wages.

The Employment Court in both cases said that while an employer is entitled to have a “zero tolerance” policy, that does not absolve the employer from critically assessing all the circumstances. An employee attacked by another, or reasonably fearing he/she is going to be attacked, is entitled to take reasonable steps to avoid actual or imminent assault. These could include what would amount to a technical assault upon the aggressor - pushing the aggressor away, tackling the aggressor to prevent further blows or the like.

The cases highlight the need for a thorough and fair investigation into incidents of physical violence at work. In both cases, the employer undertook a prompt and, on the face of it, thorough investigation.

However, both investigations were found wanting by the Employment Court. In each incident, the facts were in dispute and witness accounts were inconsistent. The Employment Court considered that inconsistent witness accounts should be put to the employee for comment. A failure to do that in these cases resulted in the employer coming to a wrong, or unjustified conclusion. On top of that, several procedural errors meant that in both cases, the dismissals were unjustified.

So, where does this leave employers dealing with workplace fighting? Clearly it is not appropriate to take no action at all for fear of a personal grievance being raised. Nor can you simply dismiss both employees by relying on a ‘zero tolerance’ approach to fighting at work. Instead, employers investigating a physical fight at work need to make sure that they conduct a thorough, full and fair investigation into all the circumstances.

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