Back in October last year, The Spark carried an article highlighting the struggle of I-Kiribati horticulture workers in Warkworth against redundancies. Since then, their site delegate, Botau Retire, was sacked by the employer, Southern Paprika, in January. He has just won reinstatement with 11 weeks’ pay plus $4500 compensation at the Employment Relations Authority.
In July 2011 Botau investigated an incident of a racist text message on a company phone. According to the sworn evidence of a former Cadet Manager, the text read: “The best Christmas present I ever had was a nigger hanging from a tree.” No-one was punished for the text, but Botau was given a warning for “threatening or abusive behaviour”. The Authority Member, Robin Arthur found that Botau’s warning was “not proportionate or soundly based on evidence”.
The dismissal was a result of a dispute between Botau and the Company who wanted to prevent him attending a mediation session with another union member because they said he hadn’t given them sufficient notice. Botau said that he felt it was his duty as a delegate to assist his fellow unionist and act as an interpreter. Mr Arthur found the dismissal unjustified and ordered reinstatement.
Very few successful cases of unjustified dismissal result in reinstatement – last year, the government changed the law so that it was no longer the primary remedy. But Mr Arthur cited a 1994 Employment Court statement that: “to award routinely compensation for the job loss instead of reinstating is to create a system for licensing unjustifiable dismissals.” That guidance was given under the Employment Contracts Act 1991, which also did not have reinstatement as the primary remedy.
Hopefully this determination will encourage more workers to fight to get their jobs back, rather than just accepting monetary compensation.
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