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Eruera-Morrison v New Zealand Post Ltd
5 Oct 2006, YS Oldfield, AA 314/06, (5 pages)
PRACTICE AND PROCEDURE - Before investigation, applicant's lawyer advised applicant would not be giving evidence to Authority - Authority Minute advised investigation would not proceed without hearing from applicant - Applicant provided affidavit but refused to take oath or affirmation, give "live voice" evidence, or answer questions from Authority or respondent's representative - UNJUSTIFIED DISMISSAL - Serious misconduct - Dismissed for taking cell phone from business while delivering mail - Applicant claimed picked up phone inadvertently - After preliminary inquiries respondent formed view serious misconduct might have occurred and began formal disciplinary process - Applicant argued preliminary meeting unfair as no notice of meeting or opportunity to seek assistance, and support person told to remain silent - Respondent used information gathered at preliminary meeting to justify commencement of disciplinary proceedings, not make decision about conduct - Process after first meeting fair and competent - Applicant contended respondent breached New Zealand Bill of Rights Act 1990 ("NZBORA") by questioning her when matter could be subject of criminal prosecution - Submitted entitled to rely on right to remain silent, not just to prevent prejudice in any possible criminal proceedings, but also to prevent prejudice to her employment as respondent a state-owned enterprise bound by NZBORA - Argument rejected because although disciplinary proceedings could be stayed where employee invoked right to silence, purpose of stay was to protect against self incrimination in relation to future criminal proceedings, not in relation to employment in general or disciplinary process in particular - In any event, applicant had not invoked right to silence - Authority aware of no authority requiring employers to caution employees - Authority viewed video footage from business and agreed entirely with respondent's assessment - That applicant deliberately took phone established to very high standard - Conclusion and decision to dismiss reasonable - Dismissal justified - Length of service 30 years - Postie
Result: Application dismissed ; No order for costs
Sidal v Chief of Defence Force
1 Dec 2006, G Wood, WA 172/06, (10 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant dismissed for arriving at work intoxicated, insubordination, threatening and abusive behaviour, and making false accusations - Credibility of parties - Respondent's evidence preferred - At time of dismissal applicant on undisputed final warning for previous misconduct - Applicant arrived at work apparently intoxicated - Told by supervisor to take day as leave - Before left involved in heated exchange with sergeant ("O") - Full investigation carried out resulting in dismissal - Conclusion applicant intoxicated on basis of six witnesses fair and reasonable - Not incumbent on respondent to be completely satisfied by getting breath or blood tests - In any event, could not compel applicant to undergo test - Decision to reject applicant's explanation intended to attend work only to apply for leave and not commence duties fair and reasonable - Rejected argument employee needed to be both intoxicated and violent for behaviour to be serious misconduct in Code of Conduct - In any event, list of what constituted serious misconduct not exhaustive list - Not estopped from taking disciplinary action because allowed applicant to take annual leave rather than suspending on pay - At time leave granted told disciplinary proceedings would take place - No condonation of behaviour, or prejudice to applicant - Continuing pattern of insubordination, threatening abusive behaviour towards, and false accusations against O stood on own merits for summary dismissal - Given applicant's denial intoxicated, despite weight of evidence, respondent more likely to believe O that applicant abused him during exchange - Conclusion fair and reasonable in circumstances - Respondent's finding over drunkenness justified summary dismissal on its own - In case of abuse, respondent relied on previous incidents resulting in final warning - Dismissal on notice more appropriate - However, given dismissal justified, factor of no relevance - Fair and reasonable to dismiss despite sustained good service - Clear at relevant time considered could no longer have trust and confidence in applicant - Dismissal justified - Length of service 15 years - Army Camp Storeman
Result: Application dismissed ; Costs reserved
Tuari & Anor v Sims Pacific Metals Ltd & Ors
23 Mar 2007, P Cheyne, CA 27/07, (14 pages)
UNJUSTIFIED DISMISSAL – Constructive dismissal - First applicant (“J”) wife of second applicant (“T”) - Both employed by respondent - Respondents concerned about T’s performance – T suffered stress-related breakdown – T given two options, disciplinary process or exit package – T agreed he and J would resign in exchange for money – T confirmed had spoken to J and she agreed to resign – T signed settlement agreement - Next morning applicants returned to work, where J deleted computer files and T broke memory stick – J disputed resignation, claiming T could not make decision on her behalf – Respondents stood J down but later said could return to work – J subsequently resigned – Whether constructively dismissed - Only possibility of coercion was dealings over J’s later resignation – Respondents could be criticised for initiating arrangements through T – However, J knew and implicitly consented to arrangements – No course of conduct with deliberate and dominant purpose of coercing resignation – No sufficiently serious breach of duty making resignation reasonably foreseeable - No constructive dismissal – BREACH OF CONTRACT - Counterclaim - Respondents claimed breach of contract and sought damages - Implied duty of trust and confidence extended to prohibit intentionally damaging company property – J breached implied obligations by deleting computer files and assisting T in breaking memory stick – No evidence of actual loss aside from memory stick – J ordered to pay damages for memory stick only - PENALTY – Respondents claimed applicants breached implied terms and/or aided and abetted each other in breaching employment agreements – No reason to distinguish between levels of culpability – Penalty imposed against applicants for breach of implied terms of trust and confidence – BARGAINING – T counterclaimed settlement agreement result of unfair bargaining under s68 Employment Relations Act 2000 ("ERA") – Authority found settlement agreement term of employment agreement and unfair bargaining claim considered - While T unwell, no evidence could not understand implications of settlement agreement – Evidence T went into meeting intending to resign – Could not succeed under s68(2)(a) ERA – Whether T induced to enter settlement agreement by oppressive means, undue influence or duress – Although pressured by options put to him at meeting, could not succeed in face of evidence intended to resign – Valid full and final agreement meant T could not succeed in personal grievance – Could not circumvent effect of settlement with penalty actions against respondents - J's length of service seven months, T's not specified - Office assistant and yard manager
Result: Application dismissed (Unjustified dismissal, bargaining) ; Application granted (Breach of contract, penalty) ; Damages ($50)(Payable to Respondents) ; Penalty ($1,000 each applicant)(Payable to Crown) ; Costs reserved
Wood v Arthur D Riley & Co Ltd
9 Jul 2007, D Asher, WA 96/07, (11 pages)
UNJUSTIFIED DISMISSAL – Serious misconduct - Summary dismissal – Applicant dismissed for forwarding email from father to others, including work colleagues – Respondent claimed email objectively objectionable/pornographic or offensive, and applicant breached house rules by forwarding it – Email images clearly intended to shock and ridicule – Notwithstanding house rules about offensive or inappropriate material, no disciplinary action taken against colleagues who received, viewed and retained email – House rules ambiguous whether computer misuse misconduct or serious misconduct - Because application of policy not consistent, did not follow email automatically amounted to serious misconduct - Therefore its application, objectively measured, could not be fair and reasonable - Section 103A Employment Relations Act 2000 ("ERA") required respondent to have regard to policy, whether policy appropriately applied, and other relevant factors – Some of general manager’s conclusions that content of email objectionable/ pornographic or offensive unsustainable - Opinions about what objectionable/pornographic or offensive notoriously subjective - Fair and reasonable employer would have gone beyond personal views, those of colleagues and others, and sought more reliable objective measures - On objective basis, fair and reasonable employer would not have concluded content objectionable/pornographic or offensive – Objective “bar” as to what objectionable and injurious set well above content of applicant’s email – Authority reached conclusion, notwithstanding respondent’s right to determine what constituted offensive or inappropriate, because of requirements of s103A ERA – Objective considerations militating against finding of serious misconduct included where email originated from, and its actual effect – Dismissal unjustified - Remedies - Applicant under current warning for breaching email policy – Needlessly forwarded email and acknowledged should not have - Respondent specifically consented to applicant sending some jokes - Contributory conduct 25 percent - Length of service two years two months – Administrative assistant
Result: Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($12,000 reduced to $9,000) ; Costs reserved
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