Swearing forklift driver wrongfully dismissed

SIOBHAN DOWNES
Last updated 10:31 04/06/2014

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A man sacked for swearing like a trucker has been awarded $5600 in compensation.

Ian Gabites was employed as a forklift operator at Carter Holt Harvey Limited in Richmond, near Nelson.

He had worked there since 2008 as both a forklift operator and truck driver.

On November 26, 2013 he told his supervisor Rodger Talbot to "go f... yourself" when asked if he had completed a job he was meant to do.

After two disciplinary meetings, he was summarily dismissed for serious misconduct in the form of "using threatening language towards your acting supervisor".

In a decision published today, the Employment Relations Authority (ERA) found the dismissal was unjustified.

Gabites had accepted he used those words but said he "guessed it was meant in fun".

He said the language was normal where he worked and they all spoke to each other like that.

But another supervisor, Peter Matthews, said that was not the case, and he had never heard any other employees talk like that in the workplace.

He said he had heard Gabites used exactly the same words "go f... yourself" to another employee about five months ago. Gabites did not dispute this.

ERA member Helen Doyle said a fair and reasonable employer could not have reached a conclusion from Talbot's complaint alone that the words used were threatening language.

The complaint simply said "then he swore at me. F... off." Talbot did not say he felt the language was threatening.

When questioned by the authority, Talbot had said he was "a bit annoyed" at the way Gabites had talked to him as opposed to distressed.

Doyle said there were procedural flaws in the process that caused unfairness, and she was not satisfied Gabites' words fit a description of threatening language.

A fair and reasonable employer could and should have given Gabites a written warning to make it clear the language was unacceptable and what the consequence would be to his employment if it was used again.

The authority awarded Gabites three months' wages less any earnings received within that period, and $7000 compensation.

However, this was reduced to $5600, as Doyle acknowledged the language Gabites used was "unacceptable and disrespectful".

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