The Employment Tribunal has ordered an employer to pay almost $49,000 to two brothers after a Christmas party turned nasty.

Mount Rex Shipping employed brothers, David and John Carr. On Christmas Eve 1998, it held a staff Christmas function at its work site in Kaukapaka. During the function, David Carr saw his supervisor (whose real name was suppressed and was given the pseudonym "John Wilson") punch another employee, Bernard Deacon, hard on the chin. Mr Deacon fell to the floor hitting his head. He lay there unconscious.

Mr Wilson was described as being 6'3" tall, weighing about 20 stone, and was an exponent of Tae Kwon Doe

David Carr immediately went to Mr Deacon's assistance. As he was bending over him, Mr Wilson punched David Carr in the face. The forced knocked him against a door. He slid down the door and lay flat out on the floor in a dazed and semi conscious state with blood streaming from his nose. Mr Deacon was still unconscious on the floor.

John Carr, who had witnessed the incident, took his brother out to his car. As they were about to drive away Mr Wilson ran out to them yelling "I'm going to f*** kill you, you bastard."

The Carrs drove to the Helensville Police Station to alert Police of Mr Deacon's condition. They then went to a local medical centre where, a short time later, two other employees arrived carrying another employee, Mr Andrew Hall. Both David Carr and Mr Hall were taken by ambulance to Auckland hospital.

The examining doctor issued David Carr with a medical certificate describing his injuries as including a fractured nose and face, concussion, a cervical spine strain, and a sprained right elbow. David Carr was off work for 6 weeks with his injuries.

Before he returned to work, David Carr did his best on three occasions to persuade his employer to make some arrangements so that he did not have to work under Mr Wilson. His brother, John Carr did likewise. However, the employer refused to do anything, and in the end the Carr brothers resigned.

Later, Mr Wilson was convicted of assault and sent to prison.

The Carrs brought separate personal grievances against the Company. The Company's governing Director, Melville Collie told the Tribunal that he had fully investigated the matter by interviewing everyone involved. Mr Wilson had been present during those interviews. A private investigator had assisted him with his investigation. As a result of the investigation, he believed that Mr Wilson had been set upon and had acted in self- defence. He was not therefore guilty of serious misconduct. Mr Collie was also of the view that the Company could not take any action against Mr Wilson until he had been convicted of assault by the District Court. At the time, although charges had been laid against him, they had not been dealt with.

In cross-examination, Mr Collie was unable to name the witnesses he had spoken with. He claimed he had taken interview notes but was unable to produce them to the Tribunal because they had been lost. When asked about the private investigator's role in the inquiry, he changed his story and said that the investigator had investigated another matter, and had taken no part in the investigation of the fight.

In separate decisions, the Employment Tribunal was highly critical of the quality Mr Melville's investigation. He had not bothered to interview the Carr brothers to obtain their version of events, and had interviewed other employees in the presence of Mr Wilson (their supervisor and the person who was at the centre of the complaint), which may have resulted in them feeling unable to speak freely.

About the fight, Tribunal member, Brian Stephenson, said "Mr Collies conclusion that Mr Wilson did no more than use reasonable force to fight off five attackers is puzzling. Such a feat would provide the makings of a scene in a spaghetti western but it is inherently improbable that, in real life, even a Tae Kwan Do expert fuelled by alcohol could have achieved it unscathed. I have no experience in unarmed combat but I am struck by the disparity of the injuries.... Even if Mr Wilson was defending himself, he used excessive force in the circumstances."

The Tribunal held that the Carrs had been unjustifiably constructively dismissed. It awarded David Carr $1,550 in lost wages and $18,000 compensation for humiliation and distress, while John Carr received $12,768 for lost wages and $16,500 compensation.