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may 2007

workplace fighting

Unlike in rugby where often the player who retaliates against foul play gets the penalty, in Housham v Juken New Zealand the Employment Court awarded $20,000 for lost wages and compensation of $20,000 against a timber industry employer who dismissed an employee who defended himself in a fight.

the facts

Juken New Zealand dismissed Mr Housham for fighting with another worker. Mr Housham was also a senior union representative and had been dismissed previously by Juken for participating in strike action, but he was later reinstated by the Employment Authority. However, this time the Employment Authority decided his dismissal for fighting was justified.

The Employment Court found that the fight began after Mr Housham exchanged verbal abuse with the other worker involved. Mr Housham was driving a forklift at the time. The other worker threw his gloves at Mr Housham and then he tried to climb onto the forklift. Mr Housham tried to push the other worker away and during the scuffle was punched in the face. Mr Housham then held the other worker down until others broke up the fight.

Juken New Zealand investigated the incident, which included a formal discipline meeting and a mock reinactment of the incident. Jukem operates a no tolerance fighting policy and decided to dismiss both workers.

defence okay but each case on its merits

The Employment Court found that an employer may properly regard assault, other physical aggression and fighting as serious misconduct and with the appropriate proof employees involved can be dismissed. However it decided that this cannot reasonably extend to every participant in such a confrontation under any circumstances. An employee attacked by another or fearing imminent physical attack by another is not required to offer no resistance at all, run away (especially if operating dangerous machinery), or meekly submit to the assault. Such an employee is entitled to take reasonable steps in all the circumstances to avoid actual or imminent assault. Such steps may 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. But the Court qualified that observation by emphasising that every case would depend upon the unique circumstances and that no hard and fast rules should be applied. The Court further commented that employers can maintain a zero tolerance policy on workplace violence but that policy does not absolve employers from critically assessing the relevant circumstances.

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Disclaimer: This article is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. Please refer to our Legal Notices.

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