News
Bring back the biff?
Fighting at work
Rocky is, without doubt, the best fighting movie of all time.
It was the first movie of its kind: the heart warming story of a small town boy, working his way to a shot at a big boxing title. Throw in a sub-plot involving a girl, and some unrelated personal challenges, and you have an Academy Award winner.
The only shame, of course, was Hollywood's desire to exploit this success by sequelising the story four more times (the only good part of which, of course, was Rocky III's classic Eye of the Tiger).
Triumphant though it may seem to defeat an opponent with use of one's fists, violence is almost never a good idea in the workplace. In fact, an employee who engages in fighting at work almost always runs the risk of fatally jeopardising the trust and confidence that an employment relationship requires.
Put another way, the law expects a good employee to find a better way of resolving problems than resorting to violence.
Some of the issues in this area were examined recently in the decision of Atkinson v Department of Corrections (Unreported, Employment Relations Authority, Auckland, 15 May 2006).
Atkinson was employed by the Department of Corrections as a Probation Officer.
On an afternoon in May 2003, Atkinson drove his car to work. He was, however, prevented from parking it in his usual space because another car had been positioned to stop him from doing so. That other car was owned by a former colleague of Atkinson, Mr Pilbrow.
Atkinson tooted his horn at Pilbrow – but this attempt to remedy the situation was ignored. Eventually, Atkinson got out of his vehicle, and an altercation between the two men occurred. It was later accepted that Pilbrow had slammed the car door against Atkinson – and that Atkinson had retaliated by punching Pilbrow in the face with a closed face. A scuffle then ensued, which was eventually ended by the intervention of another employee.
The Police were contacted and charges were laid against both men. Criminal action was not, however, eventually pursued against either man.
The employer responded by suspending Atkinson from work, and arranging for an investigation into the incident. The investigation was undertaken by a senior employee from another part of the country (presumably to preserve the independence of the investigation process).
The investigator interviewed a number of witnesses who had seen the incident, and put all of the information that he had obtained to Atkinson for his comment.
Finally, the investigator issued a written report in which he concluded that Atkinson had committed serious misconduct.
Atkinson was dismissed from his job in September 2003.
Atkinson subsequently raised an employment problem, alleging a number of deficiencies in the investigation process and its outcome. Atkinson alleged that the employer had sacked the "innocent victim" of the incident and (amongst other things) contended that the investigation process had wrongly upheld some parties' accounts of events.
The Employment Relations Authority rejected Atkinson's complaints. It found that the employer had undertaken a fair process, and that the decision to dismiss had been open to it.
In particular, the Authority upheld the investigator's finding that Atkinson did not act in self-defence when he punched Pilbrow. The investigator had concluded that it had not been necessary for Atkinson to punch Pilbrow in the circumstances that had confronted him – and the Authority did not interfere with this conclusion.
This aspect of the decision provides some guidance to employees who may find themselves in similar situations. In general, self-defence is a difficult justification to argue successfully in the case of workplace violence.
It will only be acceptable to indulge in violence if an employee reasonably believes that they are about to be subjected to some violence themselves. Even then, any act of self-defence must be proportionate to the violence that may be visited upon them.
Put simply, therefore, employees who engage in violent acts in the workplace should be aware that they do so at their own risk – and that the circumstances where violent retaliation will be seen as acceptable are very limited.
