Apprentice builder Matthew Cooper lost his job after an altercation with his foreman.
An argument between a newly-employed building apprentice and his foreman over the volume of music and the use of a pencil came to a head when the apprentice told the boss to back off or he would “put a nail through your skull”.
Matthew Cooper had only been employed by NXT Level Construction Limited in Queenstown for a month when he lost his job following the altercation.
Now, the Employment Relations Authority has ruled he was unjustifiably dismissed and ordered the building company to pay him almost $10,000.
According to the recently released ERA decision, Cooper commenced employment with NXT Level Construction, owned by Henry Dawson and Kendra Dawson, around July 15, 2022.
On July 30, 2022, Cooper was involved in a verbal altercation while working alongside his foreman and another worker.
He told the ERA that while putting up framing, the foreman yelled at him. Shortly afterward, Cooper asked the foreman to turn down his music as it was drowning out the music he was playing.
“Mr Cooper says the foreman was not accommodating and a little bit later there was a negative exchange over the use of a grinder.
“Matters then escalated over a specialist marking pencil usage that Mr Cooper had lent from Henry Dawson.”
Cooper told the ERA that while he was marking stud heights, the foreman approached him and “remonstrated with him” on the pencil’s use and ownership.
“Mr Cooper says the foreman in a verbal exchange that increased in volume, then moved toward him and in fear of a physical assault, Mr Cooper suggested the foreman back off or he would ‘put a nail through your skull’.”
Cooper, who had a nail gun in his possession at the time, maintained he had made the threat figuratively.
The foreman ordered him off the worksite and told him he was fired, Cooper told the ERA.
What followed was a somewhat curious handling of the employment matter by NXT Level Construction.
Later that day, Henry Dawson told Cooper an HR person would be in touch.
Cooper then received three emails from the company the following day.
The first, signed by “HR Consult, NXT Level Construction Ltd”, said the company would be investigating a complaint against Cooper alleging threatening behaviour.
The letter told him that no decision had been made regarding the incident, Cooper’s response would be considered, the matter would be “fully investigated”, and only after the investigation concludes would a decision on any further action, including disciplinary action, be made.
The second email, also signed by the HR Consult, confirmed Cooper would be suspended to enable an investigation.
But then the third email, signed by Henry Dawson, purported to dismiss Cooper on two weeks’ notice under “the 90-trial period in your employment contract”.
The ERA decision stated Dawson’s email “also noted, somewhat contradictorily, that during the notice period,” the company would complete its investigation into the alleged altercation and that it welcomed Cooper’s input.
“If at any stage you wish to terminate your employment earlier than the notice we have given please get in touch with us so we can make it as seamless as possible,” Dawson told Cooper.
The ERA stated that “in a somewhat unusual development”, an investigation meeting was held on August 2, 2022, to allow Cooper to explain his conduct.
But it was explained to him at the beginning of the teleconference that regardless of the outcome, the decision to dismiss him would not be reversed.
“Confusingly, despite the notes of the meeting describing the dismissal as being unalterable at the beginning, by the end the notes say it was suggested the outcome was not decided and any disciplinary action was yet to be communicated,” the ERA stated.
The ERA was provided with the company’s investigation “findings” which stated it preferred the foreman’s version of events.
While it wrongly recorded that “two others” had witnessed the incident it also noted the foreman had overstepped his role and not handled the situation “in a more professional manner”.
“After the findings were recorded, the document suggests from NXT’s perspective, that the decision to end Mr Cooper’s employment in reliance on the 90 days trial period was made to spare him the local ignominy of being summarily dismissed for a disciplinary offence,” the ERA stated.
When asked why he proceeded with the August 2 investigation meeting, Dawson told the authority he had “no idea” other than his HR Consultant’s prompting and that she ran the meeting.
He further said he followed the advice of the HR Consultant, who was a family member who provided the Dawsons with free, informal guidance, when determining he needed to investigate the matter, but then decided not to proceed with an investigation while continuing Cooper’s employment, in the belief he could be dismissed under the trial period.
The Dawsons did not seek any legal advice before dismissing Cooper, who went on to raise a personal grievance with the company, claiming he had been unjustifiably dismissed.
But in a response to Cooper on August 24, 2022, the company reiterated a view it was able to rely on the employment agreement’s trial provision to dismiss him and that the investigation findings had otherwise found he made an inappropriate physical threat to the foreman.
Cooper then turned to the ERA with his claim.
After considering all of the parties’ submissions, the authority ruled the company could not rely on the trial period because that provision had not been agreed upon when Cooper commenced employment.
It then found that Cooper was unjustifiably dismissed and ordered NXT Level Construction to pay him $8000 in compensation and $1952.32 in lost wages.
“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,” authority member David Beck said in the decision.
Cooper told NZME he was happy with the outcome and claimed he was “100 per cent” defending himself when he made the threat against his foreman.
The Dawsons declined to comment.
Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff where she covered crime and justice, arts and entertainment, and Māori issues.
Luxon has now headed onward to Europe.