Failure to directly address rumoured gang connection 'more than a minor defect' in disciplinary process, ERA says
The Employment Relations Authority (ERA) has ordered the reinstatement of a former charge hand who was fired after Fonterra believed he was "associated with gangs."
Fonterra fired Kip Ormsby from his post at the Te Awamutu Distribution Centre in September 2022 for committing serious misconduct during his interactions with a team leader and an operations manager.
As heard by the ERA, Ormsby reportedly acted in an aggressive and intimidating manner towards the centre's team leader twice in July, and later against the centre's operating manager in August.
Ormsby raised the matter to the ERA alleging unfair investigation. He accused Fonterra of taking the complaints raised against him "at face value," and closing its mind to his explanation and alternatives to dismissal.
In preparation for the investigation, however, new information was disclosed from Fonterra's senior people and culture business partner and former employment relations advisor. It revealed that the organisation had a belief that Ormsby had "gang connections" and was known to be "associated with gangs" following observations of the employee.
The ERA heard that Ormsby's alleged gang connections were "frequently talked about among the workforce" and "added to the fear the staff felt when [Ormsby] was being intimidating and aggressive."
These allegations, however, were not discussed nor raised during the disciplinary hearing with Ormsby for his aggressive behaviour.
The ERA ruled that Ormsby was unjustifiably dismissed after failing to meet the statutory test of justification. It said Fonterra had not informed Ormsby during its disciplinary process of its concerns about an alleged gang connection and its potential impact on his employment.
"This failure tainted Mr. Shepherd's disciplinary inquiry from its outset. Rumours and impressions that affected Mr Shepherd's decisions were undisclosed and unchecked," the ERA said in its decision.
"The failure to address the rumour of some gang connection directly with Mr. Ormsby was more than a minor defect in Fonterra's disciplinary process and resulted in him being treated unfairly."
In another failure in the test for justification, the authority added that Fonterra did not give Ormsby the opportunity to address the concerns about his conduct during a 'get set' staff day.
As a result, it ordered Fonterra to reinstate Ormsby and pay him $44,479.24 as lost wages, $1,334.38 for KiwiSaver entitlements, and $3,558.34 as holiday pay.
Fonterra was also ordered to pay Ormsby $17,000 as compensation for humiliation, loss of dignity, and injury to his feelings.
