Personal Grievance - Dismissal - Misconduct - Employment Relations Act 2000
Corneal v General Distributors Ltd t/a Woolworths at Gull
24 May 2007, G J Wood, WA 83/07, (13 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Misconduct - Applicant alleged required stress leave as result of manager's actions - Applicant felt picked on, but manager simply trying to ensure high standards met - Meeting arranged to work on parties' relationship - Any potential grievances applicant may have had at time in effect resolved - Issues over staffing and reporting - Applicant put in extra hours, to detriment of health, but negative impact on profitability - Disciplinary investigation begun but applicant went on sick leave and meeting delayed - Raised issue of stress and respondent sought further medical information - While on sick leave occasionally attended work - Respondent discovered money missing - Next day, applicant rang to say had money and forgot to bank it - Suspended and disciplinary meeting scheduled - Applicant alleged bullying and discrimination, and claimed this explained respondent's concerns - Respondent indicated would proceed with disciplinary investigation and if applicant wished only to deal with issues by correspondence could miss opportunity to explain - Stated would investigate applicant's complaints separately, and added new allegation applicant took stock without paying - Applicant denied allegations and declined to provide further details of her complaints as requested - Respondent concluded applicant negligent, breached company policy and actions serious misconduct - Applicant's diabetes most likely explanation for times failed to remember to things as required, especially as combined with depression - Not inherently unfair for employer to closely manage staff - Applicant not treated unfairly in relation to stress, and not victim of bullying or discrimination - Summary dismissal for misplacing money substantively justified - Stock issue provided further reason for loss of trust and confidence - Applicant chose not to be involved in disciplinary process - Respondent entitled to carry through its disciplinary procedures and could not be held responsible for failure to have all relevant material before it - Dismissal justified - No unjustified disadvantage - ARREARS OF WAGES - RECOVERY OF MONIES - Applicant went to work while on sick leave - While respondent provided cover for applicant and possible she did not work full shift, refusal to pay did not reflect well on it - Applicant entitled to five days pay - Arrears to be offset against speeding fines incurred by applicant - Balance to be paid to appropriate party - BREACH OF CONTRACT - Respondent concerned abut state applicant's uniform returned in - Applicant not required to pay for new uniform - Counterclaim dismissed - Manager
Result:
Application dismissed (Personal grievance) ; Application granted (Arrears of wages, recovery of monies) ; Counterclaim dismissed ; Costs reserved
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France v Robyn Cosmos t/a Sabotage
6 Jun 2007, M Urlich, AA 165/07, (10 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - No written employment agreement - If applicant's role had been clearly set out then her assumptions about it could have been corrected at early stage - Applicant suspended pending disciplinary meeting - Only told matter was serious and lawyer would be present - Respondent had introduced new cash handling procedures after takings went missing - Staff advised failure to follow procedures would result in warning - Applicant did not sign to acknowledge document as required - Respondent aware applicant not following new procedures - Suspended following discovery of further till imbalance - Applicant should have had opportunity to comment before serious sanction imposed - Suspension unjustified - Thirteen disciplinary allegations put to applicant, including not following store policies and theft - Characterised as serious misconduct - Dismissed following disciplinary meeting - Allegations of theft and four others not upheld but respondent convinced applicant's personality meant would not follow new processes - New processes not discussed with applicant and no warning issued to her as indicated when procedures implemented - No evidence applicant made unequivocal statement would not follow procedures - Most unusual if expression of personality during disciplinary investigation justified decision to dismiss - No specific examples put to applicant - Allegations so unformed applicant not in fair position to give reasoned response - Failure to detail whether cumulative or individual failures to follow procedures amounted to serious misconduct further flaw in process - Dismissal unjustified - Remedies - Authority not satisfied applicant took steps to mitigate loss - Store manager
Result:
Application granted ; Reimbursement of lost wages (Quantum to be determined)(One month) ; Compensation for humiliation etc ($8,000) ; Costs reserved
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Main v Interior Developments Ltd
30 May 2007, K Raureti, AA 161/07, (5 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant went for beer at nearby business after work - When returned to premises in company van found security gate closed - Applicant claimed approached gates and very slowly pushed them open with van - Submitted stopped and opened gates properly when respondent called out - Respondent described incident differently - Claimed applicant rammed closed gate - Respondent confronted applicant and short, heated exchange followed - Respondent claimed raised prospect of disciplinary action for serious misconduct and suggested meeting next day - Applicant did not show for work following day but respondent proceeded to investigated incident - Concluded actions serious misconduct and decided to dismiss applicant - When applicant arrived at work handed dismissal letter and personal belongings - No opportunity to comment on allegations - No full and fair investigation - Dismissal unjustified - Remedies - Evidence applicant nudged gate preferred - Actions lacking in good sense but not serious misconduct - Contributory conduct 20 percent -
Result:
Application granted ; Reimbursement of lost wages ($5,000) ; Compensation for humiliation etc ($3,200) ; Costs reserved
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Richard v Winstone Wallboards Ltd
8 Jun 2007, J WIlson, AA 168/07, (10 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed for sleeping during work - Previously found asleep on duty and blamed health issues - Warned could be dismissed if conduct continued - Also informally warned about performance - Disciplinary investigation begun after respondent received photo that appeared to show applicant asleep at work again - Applicant explained doing exercises, not sleeping - Respondent had statement from employee stating at time of photo applicant had not moved for 30 minutes - Employee requested anonymity and name not given to applicant - Respondent did not accept applicant's explanation - Code of conduct classified sleeping as serious misconduct and applicant dismissed - Allegation respondent breached employment agreement not accepted - No evidence respondent took narrow view of disciplinary process - Applicant claimed prejudiced by failure to divulge identity of witnesses - Submitted entitled to know so could raise matters as to witness credibility and motivation - Respondent keen to protect integrity of policy that allowed employees to use anonymous hotline to report inappropriate behaviour - Applicant fully aware of allegations against him and in position to raise any concerns about malicious motivation among small team - Respondent aware of relationships - Applicant not disadvantaged by anonymity - Aware dismissal possible and had opportunity to suggest alternatives or give assurance regarding future behaviour - Applicant not disadvantaged by respondent's failure to put direct questions to him - Respondent justified in concluding applicant guilty of serious misconduct and dismissal appropriate sanction - Dismissal justified
Result:
Application dismissed ; Costs reserved
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Roushan v Sony New Zealand Ltd
12 Jun 2007, R A Monaghan, AA 170/07, (11 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant's insurance company approached respondent after applicant made claim - Respondent compared invoices applicant presented to insurance company with originals - Purchaser details and values differed - Dismissed applicant for falsifying invoices - Applicant explained owned items but had not kept receipts and asked another employee "JK" for replacements - Apologised for providing invoices to insurance company - Applicant not shown invoices at meeting - Respondent did not speak to JK, but searched email and found messages between JK and applicant regarding invoices - Drew inferences adverse to applicant from exchange - Respondent concluded while applicant had not changed documents himself had knowingly submitted them to insurance company - Summarily dismissed, but paid four weeks pay to assist financial position - Respondent's investigation not sufficient to support dismissal - Erred by putting allegation invoices "falsified" to applicant - Should have sought explanation for unauthorised replacements and differences in detail - Although applicant admitted submitting falsified invoices Authority questioned how far admissions could be taken - Although applicant's behaviour did not assist investigation, not sufficient to overcome shortcomings in respondent's investigation - Dismissal unjustified - Remedies - Contributory conduct - Parties to determine quantum of "variable component" of applicant's remuneration package to be reimbursed in addition to four weeks lost wages - Technician
Result:
Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for lost benefit (Healthcare allowance)($47.23) ; Compensation for humiliation etc ($3,000) ; Costs reserved
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Tawhiwhirangi v The Chief Executive, Department of Corrections
27 Apr 2007, G J Wood, WA 65/07, (19 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Serious Misconduct - Dismissed for assaulting prisoner - Applicant claimed prisoner asked for contraband and was refused - Prisoner injured during ensuing "control and restraint" - Alleged assaulted by applicant - Preliminary investigation found assault probable and full investigation ordered - Applicant suspended during investigation - Security video footage ("SMS") examined - Investigation found applicant breached code of conduct and allegation of misconduct could be upheld - Given opportunity to respond, however delays upheld process - Found guilty of serious misconduct - Delays in investigation predominantly applicant's fault - Authority found suspension justified - Applicant should have sought assistance instead of using physical and verbal directions at time of incident - Behaviour not consistent with procedures - However, SMS footage inconclusive - Evidence of physical contact in context not sufficient to justify dismissal - Unreasonably concluded assault justified summary dismissal - Finding not open to respondent - Fair and reasonable employer would have given benefit of doubt - Dismissal unjustified - Remedies - Applicant reinstated - Mediation directed to assist reintegration process in workplace - $10,000 compensation would have been appropriate, however, given contributory factors, reduced to $5,000 - Award not stating level of contribution 50 percent, because applicant reinstated and no deductions made from lost remuneration - Corrections officer
Result:
Application granted (Dismissal) ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($10,000 reduced to $5,000) ; Reinstatement ordered ; Parties directed to mediation ; Application dismissed (Unjustified disadvantage) ; Costs reserved
