ERA: Apprentice who 'threatened' foreman with nail gun unjustifiably dismissed

Apprentice argues nail gun threat made 'figuratively'

ERA: Apprentice who 'threatened' foreman with nail gun unjustifiably dismissed

An apprentice who allegedly threatened a foreman with a nail gun has been awarded nearly $10,000 after the Employment Relations Authority (ERA) ruled that he was unfairly dismissed.

Matthew Cooper was employed by NXT Level Construction Limited as an apprentice builder in Queenstown in July 2022, but the ERA noted that the commencement of his employment was "informal."

According to Cooper, he was provided with an employment agreement that had a trial period provision, but there was no discussion over it and both parties did not sign the agreement.

Cooper's employment problem began when he got involved in a verbal altercation with his foreman while at a job in Glenorchy, which eventually escalated to the point of the foreman moving towards him.

The apprentice, concerned of a potential physical assault, told the foreman to back off or he would "put a nail through your skull."

Following the incident, NXT emailed Cooper three letters. The first one said an investigation will be held and the second one saying he would be suspended to allow the investigation to proceed.

A third letter, however, appeared to terminate Cooper on two weeks' notice under the "90-day trial period" in his employment contract.

Cooper then raised the matter to the ERA, claiming unjustified dismissal, and arguing that the nail gun threat was made "figuratively."

His former employer, however, argued that the dismissal was fair and reasonable after they concluded that Cooper committed an action they interpreted as "serious misconduct." They added that it was legitimate to end the employment in reliance of the 90-day trial provision.

Unjustifiably dismissed

The ERA ruled that Cooper was unjustifiably dismissed by his employer.

According to the ERA, NXT's advocate "sensibly conceded" that they were in error in trying to rely upon the 90 days' trial period provision as at the time Cooper commenced employment "it had not been agreed."

The ERA also noted that the limited evidence over the altercation suggested that the foreman also "significantly provoked" Cooper during the incident.

The authority added that NXT already had a closed mind in considering any alternatives to dismissal when they proceeded to meet Cooper and hear his explanation over the altercation.

"I find, while there were ostensibly grounds to consider dismissal for serious misconduct, the actual dismissal was enacted before any investigation or semblance of a fair process commenced," the ERA decision read.

"In addition, the investigation that did proceed was flawed in that the information provided to Mr Cooper was incomplete and the findings were not provided until after the dismissal was challenged."

As a result, NXT has been ordered to pay Cooper $8,000 in compensation without deductions as well as $1,952.32 in lost wages.

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