Oranga Tamariki right to sack employee who put young person in a headlock - ERA

An Oranga Tamariki (OT) worker sacked for serious misconduct after he restrained a young person who headbutted him, has lost a claim for unfair dismissal.
Nathan Church worked for OT for just over two years when he was dismissed on August 29, 2019, after it was claimed he used excessive force at a care facility.

He took the matter to the Employment Relations Authority (ERA) in Christchurch, seeking reinstatement and loss of earnings.

The matter arose on June 29, 2019, after Church tried to take a water bottle from a young person who had used it to get someone else wet.

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The youth became verbally abusive towards Church and a low level restraint was used.

When the young person started to headbutt Church, a medium to high level restraint was used.

The young person went to ground as Church was kicked.

Church was then assisted by another staff member, and the young person was moved to secure care.

When CCTV footage of the incident was viewed, acting team leader Wayne Keats expressed some concerns and raised the matter further.

New youth and family laws were implemented by Oranga Tamariki in July 2018. (First published July 1, 2019)

Although Church said he did not consciously intend to use the young persons head or neck in a restraint, the CCTV footage showed he had, more than once, the ERA determination said.

An investigation was carried out and the incident was assessed by two experts in the use of restraints on young people.

Acting residence manager Angela Williams decided to start a disciplinary process and Church was sent a letter detailing potential breaches of his employment agreement and OTs code of conduct.

Church was suspended on pay while the disciplinary investigation was under way.

The ERA hearing examined whether OT was justified in its suspension and dismissal of Church, and the nature of its investigation into the incident.

National Union of Public Employees union organiser Les Bryce told the hearing Church had done more than 50 restraints without complaint during his employment and had been moved to units where there had been a risk of violence to stop it happening.

The restraint was not to remove the water bottle but in response to being assaulted, Bryce said.

ERA anggota Philip Cheyne concluded OTs actions were what a fair and reasonable employer could have done at the time.

I find that OT was justified in its decision to dismiss Mr Church, he said.

The unjustified dismissal personal grievance claim must be dismissed.


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