$5,000 for threatening to smash your boss

October 25th, 2012 at 1:01 pm by David Farrar

The Herald reports:

 A telemarketer who told her supervisor she was going to “smash her” has been awarded $5000 for wrongful dismissal. …

Although the women disputed details of the cause, the ruling said it was accepted that they yelled at each other and Cumming said she would “smash” her boss if she did not shut her mouth. …

Immediate after management called at which Cumming had no support person.

At a second meeting she grudgingly apologised to Boon, but warned of further reaction if her supervisor “got in her face again”, said the ruling.

Cumming was then dismissed after director Craig Hudgell said “the threat of violence outweighed all other considerations”.

Absolute management acknowledged the dismissal was unjustified.

The authority ordered the company to pay Cumming $5000 and reimburse her filing fee of $71.55.

The company did get the process wrong, but how frustrating must it be to pay $5,000 to an employee you had to sack because she threatened violence against other staff. I think this is a good example of too much focus on process over substance.

I don’t think the initial outburst justified sacking, but to them in a disciplinary meeting assert your intention to do violence if her supervisor annoys her, is surely grounds. You have a responsibility to other staff. Again, they did not follow correct process and admit this, but how very frustrating.

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30 Responses to “$5,000 for threatening to smash your boss”

  1. kowtow (8,449 comments) says:

    More “human rights” madness.

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  2. dime (9,972 comments) says:

    just stupid.

    end of the day though, its only 5 stacks. id pay it to be rid of such trash.

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  3. Ed Snack (1,872 comments) says:

    So why hasn’t this government done anything about this ? It’s not new, this kind of “procedure trumps substance” nonsense has been extant for quite a number years, National have been too cowardly to address it.

    However I think the correct process for the company is to wait for the employee to actually hit the manager, then you can get three cases, one from the employee for hurt feelings and damaged knuckles that costs you $5K plus costs, one from the manager for being assaulted plus damaged teeth, $10K plus costs, and one from Labour Department for running an unsafe workplace, $100K plus costs. That’ll show the nasty small business employer why not to risk adding any new staff !

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  4. b1gdaddynz (279 comments) says:

    What Dime said that actually seems worth it to be rid of her!

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  5. lastmanstanding (1,293 comments) says:

    Example 4387 of how common sense has nothing to do with the laws of New Zealand. The laws are made by morons and policed by even more morons.

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  6. Feanor (38 comments) says:

    “Immediate after management called at which Cumming had no support person.”

    Immediately afterwards management called a meeting?

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  7. scrubone (3,099 comments) says:

    Well, why not have her charged for the threat?

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  8. Jim (398 comments) says:

    “had no support person”.. don’t tell me, this is part of the mandated process?

    No support person, yet quite capable of continuing to make threats. I bet if she called in support they probably would have brought weapons.

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  9. rolla_fxgt (311 comments) says:

    at least they removed reinstatement from being the primary remedy when you fail to follow procedure, otherwise in this case the company would have to have her back too.

    Really I think the authority member should have awarded her the $5000, then reduced it to almost nothing, for contribution to her dismissal, being entirely her own fault.

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  10. David Garrett (7,271 comments) says:

    As a one time employment lawyer I am quite surprised by this. It is usual in such cases for such a grievant to have found to have “contributed” to his or her situation by X% – sometimes 100% – and the remedy is reduced by that amount, regardless of the procedural flaws…which don’t sound to be outrageously bad in this case.

    I agree with DPF that issuing another threat at the disciplinary meeting should, on the face of it, counted heavily against the grievant. If it was appealed – it almost certainly wont be, because of cost – I would expect the award to be reduced, perhaps by 70-90%, for contribution.

    As a side issue, I think by and large the Employment Relations Authority – set up by the Clark government – has been significantly less successful than the former Employment Tribunal was. The irony is that the Tribunal routinely awarded much larger amounts for hurt and humiliation in genuinely deserving cases than the supposedly worker-friendly Authority.

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  11. labrator (1,850 comments) says:

    So we effectively have the ERA condoning threats of violence. If we’re going to take domestic violence seriously we should absolutely not accept any workplace violence. I thought threats of violence were a criminal offence? Correct process eh? You threaten anyone in any workplace and you should expect to be fired with no recompense. Not so in the land of the long black eye.

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  12. jakejakejake (134 comments) says:

    Threatened violence after being verbally abused and treated unfairly by a bad employer. Compensation was reduced by %50 for the threats. Seems fair to me.

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  13. David Garrett (7,271 comments) says:

    Jake: OK…the post doesnt say there was a reduction for contribution…

    $5k is still quite high by ERA standards. Fifteen years ago I got $10-15K quite often for employees in truly deserving cases…so the Labour Party appointees value “the workers” significantly less than the National Party appointees did….interesting…

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  14. labrator (1,850 comments) says:

    Seem fair to you too? Threatened violence after being verbally abused and treated unfairly by a bad [WIFE].

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  15. KiwiGreg (3,255 comments) says:

    If they hadn’t fired her they would potentially have faced a case from the supervisor for failing to provide a safe work environment. Employment cases in NZ are always and everywhere stacked against the employer.

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  16. Manolo (13,755 comments) says:

    I blame it all on the “warrior” gene. Race doesn’t matter: we all carry it, hence the perfect excuse.

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  17. big bruv (13,886 comments) says:

    Dime is dead right. We had to let a worker go this week, he was a lazy and disruptive bastard. In the end we wrote out a cheque for four grand and told him to fuck off.

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  18. dime (9,972 comments) says:

    “Dime is dead right.” – Dime is not often wrong.

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  19. Nookin (3,341 comments) says:

    A number of points:
    1. The employment agreement was wrong. It purported to describe the employment as casual when it was permanent.
    2. The workshop floor appears to have been a stressful area and was poorly supervised.
    3. The employer admitted that this was an unjustified dismissal.
    4. The employee specifically asked for but was denied a support person (whom she had arranged to attend a meeting);
    5. The decisionmaker took into account information to which the employee had no access and of which the employee was unaware.
    6. The decisionmaker made a conscious decision not to afford any opportunity to be heard on the disingenuous grounds that if she was not dismissed, she would return and cause trouble. If the employer had any concerns, the employer could have suspended her pending a hearing. The right to be heard is a fundamental component of the good faith obligations.
    7. The employee shot from the hip when addressing the fellow employee. So did the employer.
    8. I get the impression that compensation awards may well be on the up. $10,000 is quite significant. It is difficult to assess the basis for the award because the adjudicator did not prepared to go into it in any great detail. As noted, it was reduced by 50%.

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  20. Viking2 (11,467 comments) says:

    One day a longtime ago when the drivers union caused havoc an old timer in that business taught me a very valid lesson. Bad employee’s almost always steal. figure out what they are stealing and bingo out they go.
    It works.

    Second thing I have learned. You can’t have an argument if you don’t respond. Never respond to employment lawyers threats. They start a game of entrapment from your response.

    Don’t pay the award. Its a civil award and so there are huge hurdles to jump to get the money. ever tried recovering rent or the likes. Almost impossible, so people give up.

    Make sure you write it up on a FB page. Be clear and non defamatory, stick to facts.
    any person employing who does there research properly will find it.

    Use stuff to your advantage.
    Never get mad, just get even.
    win win.:lol:

    Oh and if you have a wordpress website do a blog post, same rules. Never disappears, always in cache someplace.

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  21. KiwiGreg (3,255 comments) says:

    @ Nookin if accurate then the employer was just dumb and deserves it then – #4 in particular is a no-brainer.

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  22. David Garrett (7,271 comments) says:

    Nookin: Yes…as you will know, $10K is indeed significant these days…but a country mile (or ten) from Trotter 20 years ago!

    Dime: You need to handle the “Here’s $4000, now f…off” scenario pretty carefully too…if that situation is not handled well you can end up with a claim for constructive dismissal which will cost a damn sight more…did you have legal advice when you got rid of the person, purely out of interest?

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  23. dime (9,972 comments) says:

    DG – that was bruv not me.

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  24. RightNow (6,994 comments) says:

    I’d give her $5000 for smashing my boss, but I don’t think it’s worth it just for threatening him.

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  25. slijmbal (1,236 comments) says:

    just been through an extended PG process where the employee knew the ins and outs and was ludicrous in their claims so the opportunity to pay them to go away just wasn’t worth the cost. They had performance issues and we were about to re-organise to put better qualified people in that department and I think they had an idea their days were likely numbered.

    Luckily, they and their support person were duplicitous and devious in their entire approach. It cost a fair amount in employment lawyers and took much too long with knock on effects in to the business. The lawyer kept explaining that I would win if I was careful to follow the process but if they would not accept a go-away cheque I was stuck in the process and breaking it would potentially cost lots. They were caught lying on record, inciting staff to illegal activities and outright blackmail (as opposed to negotiating) and that enabled us to dismiss that person. We have insurance against this type of stuff so our actual costs were a lot less than they could have been.

    In hindsight I wish we just sacked them and took the consequences in a year’s time at the ERA.

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  26. Pongo (372 comments) says:

    And the reforms to the employment court that Key promised are still sitting on the desk of the partner at Harmans lawyers, I guess she won’t want want to cut the income of her law firm.
    Whale oil,s diary of comrade Kate is incredibly good.

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  27. BigFish (132 comments) says:

    Would be interesting to be a fly on the wall in that workplace.
    Sometimes the people you hire as supervisors are more trouble than their staff.

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  28. Johnboy (16,529 comments) says:

    Time supervisors were empowered “to carry” methinks! :)

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  29. Tauhei Notts (1,711 comments) says:

    Here’s some free advice that has worked well for so many employers.
    When asking for a telephone reference on any person, tell the previous employer that the question you are about to ask has three answers. Any answer is a good answer. The answers are Yes, No and the third one is “I do not want to answer that question.
    Here’s the question.
    “Has that person ever been involved in any Employment Relations Authority proceedings?”
    Note the third answer; frequently former employers are bound by confidentiality agreements not to disclose anything, so the third answer gives them an easy out and tells any prospective employer everything!

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  30. Sapphie (1 comment) says:

    Nookin, #4 is not quite correct. She was not denied a support person. However, she was denied the opportunity to bring her partner as a support person because he had earlier been dismissed for threatening to delete their database. He was also intimidating and argumentative with an axe to grind. Allowing him to be a support person was not an option.

    Not sure what information you are referring to in #5

    She was originally on a casual agreement but then refused to sign a permanent one which was offered to her

    There are a few inaccuracies in your statement.

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