An Oranga Tamariki staff member fired after he put a teen in a head-lock has had his claim for reinstatement dismissed by the Employment Relations Authority.
Nathan Church was employed by Oranga Tamariki – Ministry for Children -from July 2017 until he was dismissed on August 29, 2019.
The dismissal followed an incident in June 2019 and a disciplinary investigation into that incident. Church was suspended on pay at the time.
The trouble started when two teens in the care of Oranga Tamariki started squirting each other with their water bottles in the facility’s courtyard.
Young person “R”squirted water on the back of young person “I” and wet their tracksuit.
Once inside the unit young person “I” squirted young person “R”.
Church instructed young person “I” a couple of times to hand the water bottle over but they refused.
Young person “R” jumped over a table tennis table to take the bottle off young person “I”, but missed in the attempt.
Church attempted to take the water bottle off young person “I” and was verbally abused.
Another staff member also tried to help get the water bottle and Church was reported to have used a low level of restraint on the teen.
The teen tried to head-butt Church and a medium-to-high level of restraint was used.
At this stage, the teen tried to kick Church and they were restrained on the ground.
Church said he did not consciously intend to use the young person’s head or neck in restraint, but the CCTV footage showed that he had, more than once.
Oranga Tamariki was not permitted to use holds involving the head or neck and training was given into alternatives.
Two other staff members were involved in taking the young person to the ground.
Medical attention was not needed.
After viewing CCTV footage of the incident, the acting team leader for Oranga Tamariki, Wayne Keats, sent an email to various people, indicating some concern.
Angela Williams was acting residence manager and viewed the footage and noted physical contact should always be the last resort.
She was concerned that Church had not attempted to explain what alternatives to the use of physical force he had considered.
Williams decided to initiate a disciplinary process with Church over the incident.
Church was sent a letter in July 2019 setting out a description of the incident, concerns and potential breaches of the employment agreement and code of conduct and disciplinary policy.
Four of the matters, if substantiated, amounted to serious misconduct.
Church sought representation from his union and a meeting was held in late July.
Arrangements were made so that Church and the union representative could see the CCTV footage prior to the meeting.
During the meeting, Church claimed acting team leader Keats told him there were no issues with the restraint or Church’s actions on June 29.
But Keats said his recollection was different and said:
“He (Church) asked me prior to the debrief if I thought there was anything wrong with the restraint, my reply was I am here to debrief with the team around the whole incident and not to discuss the restraint in particular.”
Church’s union representative voiced disappointment that other staff who were
present had left Church to deal with the matter.
Church explained that it was another young person “R2” who threatened to “smash” young person “I” and young person “R2” swearing at young person “I” that caused him to either control young person “R2” or follow young person “I”.
Williams said Church dealt with the wrong teen.
Church said young person “R2” was a threat.
He had not said that young person “I” was a threat.
If young person “R2” was a threat, Church should have dealt with that person, not young person “I” who was already subject to unacceptable attention from young person “R2”, Williams said.
Williams noted that physical contact should always be the last resort. She was concerned that Church had not attempted to explain what alternatives to the use of physical force he had considered.
Williams said there was no cause for Church to initiate physical contact with the young person.
The explanation that Church did this to stop unsafe behaviour by another young person was not permissible under Regulation 22 and Oranga Tamariki’s policies.
Church’s physical contact with young person “I” resulted in the safety and security of that young person being severely compromised and a physical restraint that should never have occurred, Williams said.
Although Church said he did not consciously intend to use the young person’s head or neck in a restraint, the CCTV footage showed that he had, more than once.
Oranga Tamariki was not permitted to use holds involving the head or neck.
Williams did not condone Church placing his hand on the side of the young person’s face, holding the young person to the ground.
She said that the restraint of a young person in breach of guidelines amounted to serious misconduct.
The ERA found Oranga Tamariki’s actions were what a fair and reasonable employer could have done at the time.
It was found Oranga Tamariki was justified in its decision to dismiss Church.
Church’s unjustified dismissal personal grievance claim was dismissed.
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