Zero Tolerance to Violence at Work
Many employers have a zero tolerance policy towards violence in the workplace and, while the law recognises this sloganised policy is admirable in principle, they have warned the devil is as always, in the detail.
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 for employers to dismiss an employee. Amber and red lights always precede a green and therefore employers need to think carefully whether in all the circumstances a fair and reasonable employer could decide that the light was green and a dismissal would be justifiable.
Published on Tuesday, November 18th, 2014, under Blog