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Bush v Marlborough Lines Ltd
23 Dec 2008, P Montgomery, CA 201/08, (9 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant claimed unfairly dismissed after drug test found presence of amphetamine class substance in applicant's system - First incident where respondent argued applicant failed to provide medical certificates for absences - Applicant claimed provided medical certificates for depression caused by separation from children - Second incident where applicant failed to arrive at work and respondent's manager noticed applicant smelt of alcohol after picking applicant up from home - Manager instructed applicant not to operate machinery and reported incident to managing director - Applicant called to meeting where explained consumed alcohol night before but maintained would not impact work performance - Managers explained would dismiss if repeat performance - Third incident occurred where applicant arrived at work in casual clothes - Applicant to attend first aid course later that day - Applicant directed to maintenance work before course began but refused claiming left work clothes at home - Supervisor gave evidence that applicant "didn't seem to be with it" and "wouldn't help with maintenance" - Disciplinary meeting held where applicant agreed to undertake drug test through independent health nurse - Third disciplinary meeting held where test results put to applicant - Respondent argued decision to dismiss made on evidence of positive result for amphetamine class drug and background of previous warnings - Applicant's partner ("H") sought copy of test report but told not available - H argued applicant taking Sinutab and asked if had any effect - H claimed told by manager that Sinutab did not effect result because level detected in applicant's system very high - H argued manager said if negative result from second test then would discuss matter with view to giving job back - H obtained second urine sample test and negative result returned, however, respondent unwilling to discuss applicant's employment - Authority found respondent genuinely believed drug test warranted and secured agreement of applicant - However, failed to have registered medical practitioner undertake test - Industrial nurse conducted test and told respondent that amphetamine reading high - Clear from evidence that steps taken following return of positive test moving promptly to dismissal and not steps outlined in employment agreement ("EA") - Expert evidence of ("B") that Sinutab contained amphetamine class substance likely to show in urine sample taken at time of Sinutab use - Authority satisfied presence of amphetamine class substance in urine sample explained by Sinutab medication - Lack of amphetamine in second sample confirmed evidence of B that dosage relatively low and passed through system quickly - Authority also found respondent failed to take heed of statements that results were "unconfirmed results" and not "suitable for medico/legal purposes" - Authority concluded respondent's representatives misunderstood test results and failed to take professional advice on results before dismissing applicant - Clear that previous warnings formed basis of respondent's reasoning when considered test results - Respondent entitled to request applicant undergo drug testing but failed to carry out process in accordance with EA - Dismissal unjustified - REMEDIES - Authority found contributory conduct regarding preliminary elements which led to dismissal - Contributory conduct 20 percent - $5000 compensation appropriate - Arborist
Result: Applicant granted ; Reimbursement of lost wages ($10,706) ; Compensation for humiliation etc ($5000) ; Costs reserved
Butcher v OCS Ltd
10 Jan 2008, P Montgomery, CA 1/08, (8 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Respondent claimed applicant dismissed for disobeying instructions regarding smoking at work - Applicant suspended after seen smoking while working - Respondent considered risk of reoffending and risk to its service contract with third party high - Applicant dismissed for serious misconduct after failed to propose alternatives to dismissal as requested - Applicant previously warned for smoking in uniform and instructed on appropriate behaviour - Advised breach of instructions would be serious misconduct - Applicant argued warning expired and code of conduct listed smoking as only misconduct, not serious misconduct - While warning likely expired did not mean formal instructions to restrict applicant's smoking to authorised times and places expired with it - Applicant believed other positions proposed by respondent would have paid less, but his non-response meant matter never progressed to negotiations - Respondent justified in relying on specific instructions issued to applicant with warning and entitled to consider their breach serious misconduct - Any suspension agreed to by applicant's representative - Dismissal justified - Trolley person
Result: Application dismissed ; Costs reserved
Dryden v The Radio Network of New Zealand Ltd
14 Jan 2009, V Campbell, AA 9/09, (11 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Dismissal letter stated reasons for dismissal were: failed to act in professional and appropriate manner; actions brought respondent into disrepute; failed to follow lawful and reasonable instruction from manager ("S") - Applicant attended public meeting at which Mayor refused to answer question from Chairman of South Waikato Achievement Trust Board ("F") - Applicant called loudly for Mayor to answer question, then repeated call before Mayor had opportunity to respond - After meeting, applicant invited F to radio interview next morning - S chastised applicant for behaviour and instructed applicant not to interview F or discuss meeting on air until spoke further with S - Applicant publicly called S "a joke" and said S had conflict of interest due to S's public roles - Member of public told applicant that conduct unprofessional - Applicant said if S did not want applicant to proceed with interview, respondent's General Manager ("J") could contact applicant - S reminded applicant that was S's decision as applicant's manager - Applicant conducted live radio interview with F next morning - Mayor, good client of respondent, complained to respondent about applicant's conduct at meeting - After applicant's shift, applicant called to meeting with S - Applicant initially refused to explain behaviour - S asked why ignored instructions - Applicant stated had not received call from J so felt he could, and reiterated S's conflict of interest given position on Council - Authority noted conduct out of working hours can impact on employee's employment when conduct manifestly injurious to interests of employer, particularly where clear relationship between conduct and employment existed - Applicant claimed attended meeting in personal capacity as citizen so conduct had no impact on employer - J concluded general public perception was applicant at meeting as respondent's representative - Authority agreed with respondent, finding applicant strongly associated with respondent as public figure in small community - Found that at meeting applicant located with other media and wore clothing with respondent's logo - Found conduct towards Mayor may not of itself have been inappropriate and unprofessional, however those who witnessed conduct towards S after meeting did view conduct as inappropriate and unprofessional - Authority found applicant's conduct toward S disrespectful and inappropriate in public forum - Found was conduct which could bring respondent into disrepute - Applicant maintained throughout disciplinary process that entitled to disregard S's instructions as considered S biased - J concluded applicant not entitled to disregard S's instruction - J also concerned that applicant refused to discuss matter with S - Authority found S's instruction was lawful and reasonable - Found refusal to adhere to S's instruction deliberate and intentional, as applicant acknowledged on air that "was not supposed to" conduct interview - Authority found clear breach of respondent's Employment Policies ("EP") - EP incorporated into employment agreement - In all circumstances, fair and reasonable employer would consider conduct amounted to serious misconduct - Dismissal justified - Proper procedures followed - Radio Station Breakfast Host
Result: Application dismissed ; Costs reserved
Godfrey v Canon New Zealand Ltd
8 Dec 2008, G J Wood, WA 161/08, (9 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed after conviction for drink driving offence - Applicant driving company vehicle when offence committed - Reasons for dismissal were conviction was applicant's third for same offence, respondent not prepared to support application for limited licence again, and applicant not permitted to work at alternative location - Length of service 22 years - Applicant claimed led to believe employment would be on going and therefore lulled into false sense of security about outcome of disciplinary process - Authority found despite unacceptable delay in holding disciplinary meeting, applicant knew conviction considered serious misconduct and dismissal was possible outcome - Based on evidence Authority did not accept applicant's argument that did not have full and fair opportunity to explain position at disciplinary meeting - Applicant considered decision to dismiss made by head office and not Customer Care Manager ("A") who actually dismissed applicant, meaning applicant not given opportunity to be heard by decision-maker - Authority accepted A's evidence that liaised with human resources at head office and Chief Executive ("CE") required to authorise or approve dismissal, but ultimate decision A's - Found need for CE's authorisation or approval did not make CE ultimate decision-maker - Applicant alleged A predetermined dismissal because A had pre-authorised approval for dismissal from head office - Authority accepted A's evidence that open to convincing explanation from applicant - Authority concluded while ideal process not followed, not so unfair as to make dismissal unjustified - Applicant submitted never given formal warnings, and even if had, would have expired - Also submitted dismissal not necessary given applicant's length of service and good performance - Authority accepted applicant never subject to formal warnings, and that any warnings would have expired - However, applicant knew driving company car with excess breath alcohol level constituted serious misconduct under employment agreement and no warning was necessary - Authority found fair and reasonable employer would conclude summary dismissal appropriate sanction - Given any procedural defects were minor respondent acted as fair and reasonable employer - Application dismissed - Customer Care Officer
Result: Application dismissed ; Costs reserved
Graham (formerly Bramley) v M P J Holdings Ltd t/a The Pinetree Arms
28 Jan 2008, G J Wood, WA 11/08, (9 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Respondent dismissed applicant for allegedly consuming its product without authorisation and without paying for it - Employment relationship characterised by some historical misconduct, together with serious problems associated with alcohol consumption, that were treated leniently by respondent - Respondent concerned with stock shrinkage and that no sales rung up on till during two hour period bar contained customers - Taking into account previous warning for similar behaviour, respondent dismissed applicant - Clear dismissal unjustified on procedural grounds - Applicant not told reason for disciplinary meeting or given sufficient time during meeting to refute allegations - Respondent accepted should have given applicant opportunity to compose herself during meeting - Dismissal unjustified - Remedies - Sufficient level of proof applicant guilty of serious misconduct - Dismissal inevitable - Contributory conduct 100 percent - Bar manager
Result: Application granted ; Costs reserved
Sminchisescu v Five Star Distribution Ltd
13 Dec 2007, R A Monaghan, AA 392/07, (21 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Misconduct - Applicant dismissed for returning to workplace in breach of instruction not to - Incident involving staff applicant responsible for taking beer from damaged delivery - Manager began to investigate matter - Applicant suspended on pay and told not come on site until matter resolved - Later given permission to return and collect personal property, but issue arose over whether took work documents or tried to influence people involved in investigation - Respondent considered applicant removed incident report - Disciplinary meeting held regarding serious misconduct - Unclear whether misconduct referred to removal of beer or paperwork - Grounds not made clear until end of meeting when told related to failure to follow instructions - Applicant dismissed - Circumstances relating to applicant's conduct over beer incident not unusual and did not warrant suspension - Unjustified disadvantage - Difficult for respondent to justify dismissal for failure to follow instruction associated with unjustified suspension - Overall applicant's conduct not properly investigated and dismissal profoundly flawed - Respondent not entitled to reach conclusion it did - Dismissal unjustified - Remedies - In absence of properly completed investigation respondent could not rely on any loss of trust and confidence arising out of matters - Although at times applicant behaved in underhanded way, conduct not serious enough to base finding should not be reinstated - Supervisor
Result: Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($2,000)(Disadvantage) ; ($3,000) (Dismissal) ; Reinstatement ordered ; Costs reserved
Stevens v Sticky Fingers 2006 Ltd
18 Dec 2007, J Crichton, CA 155/07, (10 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Misconduct - Applicant involved in altercation with manager - Suspended pending disciplinary investigation and then dismissed for abusive behaviour and failure to follow reasonable instruction - Applicant previously involved in altercation with same manager - Lack of resolution led to second confrontation - Respondent's evidence preferred - Applicant refused reasonable instruction not to persevere with discussion in front of customers and staff but to continue it during work hours - Reasonable for respondent to prefer witness accounts to video surveillance tape in circumstances - Overall process adopted by respondent fair - Although applicant unable to comment on decision to suspend him prior to investigation it was course of action available and appropriate in circumstances - Failure to seek input into decision no more than technical breach - Substantive conclusions as to applicant's behaviour and insubordination reasonable - No disadvantage - Dismissal justified - Bar manager
Result: Application dismissed ; Costs reserved
Williams v The Warehouse Ltd
22 Jan 2008, D King, AA 15/08, (6 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant previously spoken to about professionalism regarding relationship with co-worker - Co-worker later involved in disciplinary investigation relating to sale irregularities - Investigation discussed at manger's meeting and confidentiality of content emphasised - After meeting applicant shared information with co-worker - Disciplinary meeting held to discuss breach of confidentiality and allegation applicant also involved in sale irregularities - Applicant acknowledged breach of confidentiality and meeting adjourned to allow investigation into other allegations - When meting resumed applicant produced letter from co-worker stating applicant had not told her confidential information - Respondent considered information inconsistent with earlier events and dismissed applicant - Credibility finding in favour of respondent - Applicant's actions occurred in context of history of cautions regarding relationship with co-worker - Dismissal justified - Team leader
Result: Application dismissed ; Costs reserved
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