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Allen v Riversun Nursery Ltd
19 Feb 2008, A Dumbleton, AA 52/08, (28 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant summarily dismissed following investigation into five alleged instances of misconduct - Respondent advised applicant five allegations of serious misconduct being made against her - Allegations in relation to reviewing and reporting on outbreak of viral infection in imported grapevine stock, misleading one of respondent's directors that conference registration completed when wasn't, managing recruitment of staff, obtaining approval of advertising copy, and not complying with instructions for creation and updating of job descriptions - One of respondent's directors ("P") investigated allegations - P concluded serious misconduct in respect of first two allegations, misconduct in second two, while fifth allegation not misconduct but raised performance issues - Applicant given opportunity to make submissions on proposed summary dismissal - Applicant submitted P's conclusions wrong, denied any misconduct and at most performance issues - Taking applicant's submissions into account P concluded summary termination "only appropriate outcome" - Authority found applicant never received explicit warning during employment period - Respondent claimed discussions about expected standard of behaviour and conduct were sufficient warnings - Authority found discussions not frequent or explicit enough to constitute warnings - Authority found respondent failed to organise applicant's performance review, despite requirement in employment agreement - Found applicant deprived of opportunity of knowing reasonable and lawful requirements of performance through formal warnings or performance reviews - Dismissal not justified by conduct in relation to two allegations found to be serious misconduct as conclusions unreasonable and respondent did not act as fair and reasonable employer - Summary dismissal unjustified - Remedies - No contributory conduct found - Applicant sought reinstatement - Authority found reinstatement would be impractical in all circumstances - Authority noted respondent's restructuring meant applicant's position likely to be surplus to requirements - Reinstatement declined - Authority satisfied applicant upset by dismissal and anxious about future comparable employment prospects - Compensation of $10,000 appropriate - Satisfied reasonable attempts made to mitigate loss - If not dismissed employment likely to have ceased when respondent restructured - Award of seven months lost wages appropriate - General Manager
Result: Application granted ; Reimbursement of lost wages (7 months) ; Compensation for humiliation etc ($10,000) ; Costs reserved
Barton v Air New Zealand Ltd
14 Feb 2008, Y S Oldfield, AA 45/08, (16 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent alleged applicant breached of code of conduct when took steps to arrange discounted fares for personal associates outside respondent's policy - Applicant accepted attempted to purchase ticket but claimed not aware what rules applied - Applicant booked flight for partner outside policy with 75 percent discount and large loss to respondent - Co-worker ("C") authorised premium seating for ticket, also in breach of code - Authority accepted respondent's assertion that applicant knew or ought to have known of policy -Found applicant untruthful towards respondent and Authority - Authority found inference to be drawn from fact applicant went to C for approval rather than manager was that applicant knew was outside policy - Found C's approval did not legitimise applicant's actions - Found application's attempts to purchase discounted airfare were for personal gain and improper benefit of another party - Authority found respondent reasonably concluded that applicant's assertion that ignorant of policy was not credible - Respondent also argued applicant misled manager - When applicant discussed ticket with manager, applicant did not reveal until questioned that ticket was for partner - Authority found applicant did not lie to manager, but was not open and forthcoming in providing all relevant information - Found respondent justified in concluding applicant attempted to mislead manager - After discovering breach of policy, manager offered applicant small discount on ticket - Applicant instead organised cheaper ticket through different co-worker - Authority found although arranged ticket within policy, applicant acted without manager's knowledge and contrary to instructions - Respondent argued this confirmed applicant not open and honest - During disciplinary investigation, respondent discovered earlier discounted travel booked for friend outside policy and without approval from manager - Respondent discovered email from friend asking if would be able to obtain discounted fares in future - Authority found respondent justified in concluding applicant had created expectation would provide discounted airfares - Disciplinary investigation concluded with dismissal - Applicant claimed decision maker failed to consult superiors before dismissal - Authority found proper consultation occurred - Dismissal procedurally justified - Applicant argued disparity of treatment as C received final warning - Authority did not accept respondent's argument that disparate treatment warranted by fact C had no personal gain and different manager determined outcome of disciplinary investigation - However, found conduct distinguishable as applicant engaged in series of actions breaching policy, including misleading respondent's investigation - Found respondent justified in concluding trust remained in C but irrevocably broken with applicant - Authority concluded applicant's behaviour constituted serious misconduct destructive of trust and confidence - Dismissal justified - Airline group sales co-ordinator
Result: Application dismissed ; Costs reserved
Brodie v Opotiki Packaging and Coolstores Ltd
15 Feb 2008, R A Monaghan, AA 47/08, (16 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant claimed dismissal unjustified as actions not serious misconduct under company rules - Applicant missed grading errors on new quality control system - Site manager ("D") arranged disciplinary meeting - D concluded conduct amounted to neglect in duties and issued formal written warning - During audit D discovered failure in quality control at high cost to respondent - D stood down applicant to investigate cause - Applicant's solicitor and D embarked on merits of matter before disciplinary meeting - Respondent argued applicant failed to follow quality control criteria, act on information showing product outside quality grade and notify management, and instructed staff to disregard quality information and not record failure - D argued applicant deceitful and unprofessional - D noted applicant did not follow correct disciplinary procedure - Applicant dismissed at conclusion of disciplinary meeting - Authority rejected applicant's argument that not given sufficient time to improve after warning, as found problem was poor judgement not lack of training - Authority rejected argument that applicant unsure of lines of authority or applicant's role - Authority found respondent entitled to take into account failure to take responsibility and previous warning - Found respondent entitled to conclude serious failures by applicant - However, evidence supported finding of less serious misconduct under respondent's disciplinary policy, not serious misconduct likely to result in instant dismissal - Found dismissal on notice action for fair and reasonable employer - Summary dismissal unjustified - REMEDIES - Authority found remedies limited to notice period as dismissal on notice would have been justified - Interest at 8.7 percent from date of dismissal until payment - Costs reserved - Authority noted in determining costs would take into account respondent's unexplained delays in filing documents, as affected efficient conduct of investigation - Quality control supervisor
Result: Application granted ; Pay in lieu of notice period ; Interest (8.7%) ; Costs reserved
Christiansen v Soar Printing Company Ltd
11 Mar 2008, A Dumbleton, AA 84/08, (8 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant downloaded Photoshop software from respondent's computer onto personal laptop - Caused damage to respondent's computer - No authorisation to download software, and actions illegal as programme registered to respondent - Respondent's general manager ("D") discovered what happened and gave letter of notice of disciplinary meeting - Letter said would assume meeting time suited applicant unless applicant contacted D to reschedule - In discussions before meeting, applicant's manager ("H") expressed view that respondent would treat action seriously but would only result in warning - Applicant took sick leave - Applicant attempted to defer meeting as unwell - D said would rather proceed so applicant agreed - At conclusion of meeting, D arranged further meeting to present conclusions - At second meeting, applicant silent when D asked to explain why took copy of Photoshop when knew it was illegal - D terminated employment, effective immediately - Authority found unfair and unreasonable for D not to accede to applicant's request for adjournment of disciplinary meeting when applicant unwell - Declining request was contrary to letter stating to contact D if wished to reschedule - Authority found while H made no promise that meeting would result in warning only, expression of opinion played part in applicant's decision to proceed with meeting when unwell and without support person - Found fair and reasonable employer would not have proceeded with scheduled disciplinary meeting when employee given reason to believe dismissal unlikely and therefore not persisted in seeking adjournment despite sickness, and when employer encouraged employee to continue with scheduled date when previously implied date could be changed on request - Dismissal unjustified - Authority found applicant gave no excuse for actions to respondent or Authority - Authority concluded actions breached house rules, amounted to serious misconduct and warranted dismissal - Applicant found new employment one week after dismissal - Found applicant's fault or blame contributed so overwhelmingly that finding of 100 percent contributory conduct appropriate - No remedies awarded
Result: Application granted ; Costs reserved
Corlett v Transfield Services (New Zealand) Ltd
23 Feb 2009, A Dumbleton, AA 59/09, (13 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed final warning unjustified - Applicant's role involved delivering waste to transfer plant operated by client of respondent - Client complained to respondent of applicant's conduct on two occasions - Client banned applicant from plant - Client alleged applicant swore and refused to follow instructions - Respondent held disciplinary meeting with applicant to discuss complaint and ban - Applicant advised to bring support person and warned dismissal possibility - Respondent rejected applicant's explanation for behaviour - Respondent concluded serious misconduct warranting final warning - Authority found conduct towards client serious and damaged respondent's reputation - Found respondent reached decision to issue final warning after thorough enquiries, including asking applicant's version and discussing complaint with client - Found respondent reasonably concluded conduct amounted to serious misconduct - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Serious misconduct - Authority accepted respondent's evidence that warned applicant breaching ban could result in all respondent's employees banned from plant and applicant's dismissal - Respondent made alternative arrangements so applicant could continue work without going to plant - One week after disciplinary meeting, applicant went to plant - Applicant drove respondent's vehicle and wore work uniform - Client complained to respondent - Applicant called to second disciplinary meeting - Respondent denied applicant's third request for rescheduling of meeting, having granted prior two requests - Applicant's union representatives present at disciplinary meeting - Applicant telephoned to explain was not coming to meeting for family reasons - Respondent proceeded without applicant - Respondent concluded applicant disregarded respondent's and client's instructions only one week after final warning issued, thereby destroying trust and confidence - Respondent concluded actions serious misconduct and terminated employment - Authority found strongest challenge to justification of dismissal was fact meeting proceeded without applicant - Found applicant had indicated would attend meeting - Found representatives did not protest to meeting continuing without applicant - Representatives argued that at time thought respondent already decided to dismiss anyway - Authority found union representatives put forward no basis for conclusion of predetermination - Found respondent wary of whether applicant had genuine reasons for not being present, as diversionary tactics previously used - Authority found fair and reasonable for respondent to proceed with meeting - Found was applicant's decision not to attend meeting - Found even without applicant's presence at meeting, was open to respondent to find applicant had deliberately disobeyed lawful and reasonable instructions and final warning - No justification for applicant that was trying to clear name because applicant aware that involved breaching ban and disobeying instructions - Actions constituted serious misconduct under house rules - No unjustified dismissal - Authority noted if had found applicant unjustifiably dismissed, would likely have found substantive if not total contributory conduct - Horticulturalist
Result: Applications dismissed ; Costs reserved
Fleet v Idea Services Ltd
10 Mar 2009, V Campbell, AA 73/09, (6 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent received complaints from two service users ("A" and "B") that applicant acted inappropriately and used inappropriate language towards them and other service users - During interview with A and B about alleged incidents further allegations made that applicant hit another service user ("Z") with cattle prod when wet bed and failed to administer Panadol when requested - Respondent advised applicant of allegations - Agreed that applicant would not work but remain on full pay - Applicant initially represented by Union, then appointed alternative legal counsel - Applicant advised respondent not attending scheduled disciplinary meeting - After difficulties arranging time, first disciplinary meeting held - Applicant denied allegations - Respondent undertook further interviews of staff and service users - Z non-verbal so unable to be interviewed by respondent - Z interviewed by clinical psychologist to assess capacity to give version of events - Concluded Z did not understand concept of being hurt by someone and memory of past events limited - At second meeting applicant continued to deny allegations - Respondent conducted further interviews with A and B as concerned about veracity of information received from initial interviews - Information from interviews made available to applicant, and third meeting arranged - At meeting applicant given opportunity to provide further explanations - Applicant dismissed for serious misconduct - Authority found hitting service user could constitute serious misconduct justifying dismissal - Applicant's position being sole charge was important consideration - Authority found respondent conducted full and fair investigation and reached conclusions of fair and reasonable employer - Dismissal justified - Community Support Worker
Result: Application dismissed ; Costs reserved
Latunipulu v Veda Advantage (NZ) Ltd
10 Mar 2009, L Robinson, AA 76/09, (9 pages)
UNJUSTIFIED DISADVANTAGE - Serious misconduct - Respondent a credit reporting agency that employed applicant - Baycorp ("B") a client of respondent - Previously B and respondent part of same company - Applicant emailed two of B's employees asking whether paid debt records could be removed from personal file as having difficulty obtaining first home loan - B employee contacted applicant sought references of defaults but stated unable to request default records be removed as did not comply with B's policy with respondent - B's management informed respondent of correspondence - Applicant claimed emails merely asked procedure through B and not request for instant removal of defaults - Respondent's manager ("S") provided applicant with relevant documents and told disciplinary meeting would be next day - Next day, applicant produced resignation letter - Applicant withdrew resignation when S informed unable to accept resignation - After disciplinary meeting applicant summarily dismissed - Authority found only discernable allegation was applicant requested default records removed from file - Found applicant made no attempt to interfere with computer system directly - Respondent argued applicant attempted to manipulate file in way knew was illegitimate - Authority concluded applicant only guilty of making request - Found respondent's justification for dismissal, that was direct interference, did not occur in fact - Found applicant's request transparent, made enquiries, and invited defaults be deleted - Authority did not consider applicant's request repudiatory conduct - Severe consequence of summary dismissal not appropriate - No harm to respondent - Respondent erred by elevating potential harm to actual harm - Summary dismissal unjustified - Remedies - No contributory conduct - Authority found given hurt and humiliation suffered and ten years service $8000 compensation appropriate - Call centre customer services representative
Result: Application granted ; Reimbursement of lost wages (3 weeks) ; Compensation for humiliation etc ($8,000) ; Costs reserved
Saunders v Post Haste Couriers Ltd
5 Mar 2008, R A Monaghan, AA 72/08, (7 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant employed part time and completed timesheets to record hours of work - Applicant received final written warning for falsifying timesheet - Ten months later, co-worker ("A") advised respondent that applicant not at work, inconsistent with timesheet - In disciplinary interview, applicant stated worked several hours that day - Applicant then retracted and claimed at work for few minutes but completed timesheet incorrectly by mistake - Applicant's support person ("J") claimed applicant confused about day in question - Respondent dismissed applicant for serious misconduct - Applicant accepted discrepancy between hours worked and hours recorded on timesheet - Authority rejected applicant's argument that dismissed to make position available for A's relative - Authority rejected applicant's argument that dismissal was unjustified because respondent's process for completion of timesheets flawed - Applicant claimed J should have been permitted to participate more actively in disciplinary meeting - Authority found respondent entitled to seek applicant's account of events from applicant himself - Found J not entitled to suggest an account to respondent, but only to assist in making applicant's account clearer - Found restriction on J's participation in meeting procedural flaw, but not sufficient to render dismissal unjustified - Found applicant's only explanation for incorrect completion of timesheet was that was accident - Found applicant had below average IQ and suffered difficulties - Found worksite was small depot without on-site supervisor, so employer entitled to rely on applicant to complete timesheets correctly - Found applicant shown could not be relied upon to observe obligations - Dismissal justified - Deconsolidator
Result: Application dismissed ; Costs reserved
X v Y
16 Mar 2009, H Doyle, CA 29/09, (12 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent a trust providing services to people who experienced effects of mental health disorders - Referral to trust from other parties - Respondent argued applicant not dismissed, but if dismissal found, then serious misconduct justified dismissal - Authority satisfied applicant dismissed - Respondent argued applicant's verbal abuse of co-worker ("first action") and deliberate breach of client confidentiality ("second action") justified serious misconduct findings - Authority found no unfairness in delay of disciplinary meeting and not relevant no suspension - Applicant argued other unspecified matters relied on by respondent in reaching decision to dismiss and not given opportunity to respond - Applicant explained at disciplinary meeting first action involved altercation with co-worker but considered both parties put matter at an end - Second action concerned referral to respondent of file on applicant's daughter ("D") - File stated D had attempted suicide - Applicant discussed appropriate protocol for dealing with D's file and agreed manager would handle file - Applicant accepted discussed with managers confidentiality issues and told not to assume D's mother ("M") knew of D's attempted suicide - Same day applicant telephoned M - Respondent received call that D wanted to lay complaint - D upset that applicant disclosed attempted suicide to M - Applicant explained very upset and contacted M because wanted to know what M knew and discuss response - Applicant argued only rang out of parental concern and acting on "auto-pilot" - Letter of dismissal gave Authority cause to reflect on whether other reasons for dismissal - Authority found main emphasis in letter on first and second actions - Found decision to dismiss only for first and second actions - Found although first action pursuable by fair and reasonable employer, incident itself not serious misconduct - Applicant's Employment Agreement stated disclosure of confidential information serious misconduct that may lead to summary dismissal - Authority found in circumstances fair and reasonable employer would consider second action serious misconduct - Respondent argued took into account applicant's lack of appreciation of seriousness of breach - Authority noted nature of respondent was relevant circumstance - Authority found in organisations that assisted people with mental health issues, confidentiality fundamental principle based on client's right to decide whether information to be shared - Applicant argued felt compelled to raise matter with M as saw matter of life and death - Authority found no evidence failure to advise M would have been a life and death situation - Authority satisfied fair and reasonable employer would not find exception to confidentiality principle - Authority found managers realised difficult situation facing both applicant and trust - Protocol discussed and agreed to by applicant - Applicant had input into which manager dealt with D's file and told manager relationship with D distant - Applicant's deliberate decision to contact M destructive of trust and confidence managers entitled to have with applicant - Found fair and reasonable employer would have wanted to know applicant appreciated seriousness of breach so confidence maintained with respondent in future - Dismissal justified
Result: Application dismissed ; Costs reserved
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