Orchard worker who punched and kicked workmate justifiably dismissed, but tried to claim compensation

Former orchard worker Kalem Brown complained to the ERA, claiming unjustified dismissal, and seeking lost wages and compensation for hurt and humiliation. Photo / NZME

A man who punched a workmate and then kicked him repeatedly on the ground claimed after he was fired that he was unjustifiably dismissed and should be compensated.

Orchard worker Kalem Brown punched machine operator Fred Koster in the face and then kicked him repeatedly in the stomach and the head, leaving the imprint of his shoe on Koster’s face.

Koster told the Employment Relations Authority (ERA) investigating Brown’s dismissal that he sustained a concussion and damage to an eye socket.

“Mr Koster continues to experience painful headaches, as well as ongoing pain in his eye socket, and a deterioration in his eyesight in the eye that was hit,” ERA member Claire English said in a published decision.

The attack happened at the tally clerk’s office at Malbec Orchards in Hawke’s Bay after Koster told Brown to leave a heavy machinery area where he was not authorised to be.

Brown was dismissed the same day - not for the assault on Koster but for threatening two female managers who intervened, swearing at both of them and telling them “you’ll be next”.

One of the female managers dismissed Brown by email the same day.

Brown complained to the authority, raising a claim of unjustified dismissal, and seeking lost wages and compensation for hurt and humiliation.

Brown said that Koster swore at him and this was “provocation”. He said he had experienced depression and suicidal thoughts since his dismissal, and his parents told the ERA that he acted in self-defence.

English dismissed Brown’s claim for unjustified dismissal.

“The law is clear that threats of violence in the workplace are not acceptable and threats made by an employee can justify dismissal,” she said.

“This is particularly so where other employees in the workplace have a genuine fear of violence due to the surrounding circumstances, as was the case here.”

English found in Brown’s favour in that he had a personal grievance over the way he had been dismissed, without a further opportunity to comment before being fired.

However, she said that “Mr Brown’s actions and behaviour were strongly causative of the situation that gave rise to his personal grievance of unjustified disadvantage”.

She said it would not be just or equitable to award any remedies for this.

The ERA decision notes that during seven weeks of employment at Malbec Orchards, Brown worked for a total of 60 hours.

For three weeks he did not attend because he had Covid-19, but on one week he chose not to come in “for personal reasons”.