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Flynn v Fonterra Brands (New Zealand) Ltd 08 January 2014


[2014] NZERA Auckland 2




Date of Determination: 9 January 2014

A. Craig Flynn was unjustifiably dismissed by Fonterra.

B. An order for Craig Flynn to be permanently reinstated to his job at Fonterra.

C. The Authority declines to award any remedy under s123(b) because Mr Flynn has not proven to the required standard he has lost remuneration.

D. The Authority declines to award any remedy under s123(c)(i) because Mr Flynn’s behaviour was causative of the outcome and blameworthy.

E. Costs are reserved. If costs are sought, submissions are to be filed within 14 days of the determination. The other party may file submissions in reply 14 days thereafter.

Employment relationship problem

[1] Craig Flynn was dismissed following the production of two videos at the Takanini plant of Fonterra Brands (New Zealand) Limited (Fonterra). The videos showed seven Fonterra employees, including the applicant, re-enacting their own version of the “Harlem Shake” internet memo [1]. Four of the seven employees kept their jobs. Mr Flynn and two others were dismissed.

[2] The Authority ordered the interim reinstatement of Mr Flynn to his job.2 Mr Flynn now seeks permanent reinstatement. He submits his behaviour did not justify dismissal and there were procedural flaws in the process leading to the dismissal.

[3] Fonterra disagrees. It says the decision to dismiss was open to a fair and reasonable employer given the importance of health and safety and the applicant’s knowledge, actions and conduct amounted to failures to comply with these requirements.

[1] An internet memo is a short video where people perform a comedy sketch accompanied by a short excerpt from the song “Harlem Shake” by Baauer, an American DJ and producer.

Full determination: 2014_NZERA_Auckland_2.pdf

The videos:

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