Zero Tolerance to Violence at Work

Many employers have a zero tolerance policy towards violence in the workplace and while the Employment Court recognises it is admirable in principle, they have warned that “the devil is as always, in the detail of what is meant by a policy that has been sloganised”.

A zero tolerance policy can be dangerous in the wrong hands.

In Housham v Juken New Zealand Ltd, a case involving fighting in which Mr Housham claimed that in pushing the other employee away he was acting in self defence, the Employment Court warned of the dangers of zero tolerance policies.

Mr Housham was driving a forklift when another employee, Mr Nathan, shouted rude abuse at him for emptying rubbish into the wrong bin. As Mr Housham drove away Mr Nathan threw leather gloves at him. They abused each other and Mr Housham stopped the forklift. Mr Nathan attempted to mount the forklift and, fearing an assault, Mr Housham pushed him away but still a fight occurred.

While in evidence the company said an employee fearing imminent assault would be entitled to take reasonable steps in self defence without being guilty of serious misconduct, the notes of interviews indicated the zero tolerance policy was being applied. The Court found therefore that Mr Housham was unjustifiably dismissed.

The Court emphasised that an employee attacked by another or reasonably fearing imminent physical attack is not required to offer no resistance at all, run away (especially if operating dangerous machinery) or meekly submit to the assault. 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 technical assault such as pushing the aggressor away and tackling the aggressor to prevent further blows.

This is not a green light for employees to take the law into their own hands. The Court has emphasised that every case is different, there can be no hard and fast rules and what amounts to a reasonable response to actual or impending violence will depend on the unique circumstances of the case. Therefore, if an employee has a problem at work with bullying, intimidation and threats from a co-worker or supervisor, then he/she should talk immediately to the employer about the problem.

Equally the zero tolerance policy is not necessarily a green light to dismiss an employee. Amber and red lights always follow a green and therefore employers need to think carefully whether a fair and reasonable employer would agree that the light was green at the time the decision to dismiss was made.