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Baker v Clenford Services Ltd
9 Nov 2006, RA Monaghan, AA 343/06, (5 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged unjustifiably disadvantaged by demotion - Applicant had agreed to variation - Authority did not accept any bullying or intimidation by respondent - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed after arguing with another employee in store - Principal submission regarding lack of substantive justification rested on applicant's evidence about pronunciation of swear word - Authority did not accept evidence or that explanation given to respondent - Also submitted not language that could cause offence - Word used not at foul end of scale, although not one customer service employee should use in hearing of customers - Circumstances in which used relevant - Word used in public part of store, in hearing of customers, by someone who had recently been in management position and remained supervisor - Not acceptable - Might have called for lesser sanction if were mitigating circumstances - However, no provocation to justify response - Also, applicant not model employee, rather had history of performance problems - Substantive grounds to dismiss - While applicant should have had opportunity to respond to other employee's account of event, failure did not vitiate dismissal - Differences in detail not material and did not affect conclusion respondent reached about applicant's conduct - Dismissal procedure not so flawed as to render dismissal unjustified - Dismissal justified - Length of service seven months before alleged disadvantage, one year five months until dismissal - Checkout supervisor
Result: Application dismissed ; Costs reserved
Collins v Kaans Catering Supplies Ltd
20 Nov 2006, P Cheyne, CA 157/06, (4 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant dismissed for failure to advise not attending work - Respondent claimed applicant had history of not reporting for work and had received final warning for lateness - Applicant required to telephone before start time if unable to work - Applicant did not report for 5am start time or contact respondent - When new supervisor rang applicant was told he started at 6am - At 6am applicant rang receptionist and said would be absent as sick - Human resources manager rang and read letter to applicant raising concerns about failure to report and misleading supervisor over start time - Required attendance at disciplinary meeting - Next day applicant left message after start time saying would not be in - Obtained medical certificate saying unfit for work until next day - Authority did not accept anything said to cause applicant to think not at risk of dismissal - At disciplinary meeting applicant denied pretending start time was 6am and claimed had not rung earlier because would be no-one at work - Also said planned not to go to work so did not get up - Relevant circumstances included importance to respondent's business of staff starting on time - Applicant claimed should not have been dismissed because absent due to genuine illness - Would have been merit in point, except not what happened - Applicant preplanned not to go to work so did not get up on first day - At point knew likely would not be going to work should have rung respondent - Applicant knew obligation, he simply ignored it - Respondent concerned about failure to advise absence in timely manner, not reason for it - Dismissal justified - Length of service two years nine months
Result: Application dismissed ; Costs reserved
Crooks v Pratt & Whitney Air New Zealand Services
2 Apr 2007, H Doyle, CA 35/07, (12 pages)
UNJUSTIFIED DISADVANTAGE - Applicant had sexual relationship with 14 year old daughter of co-worker ("Z") - Arrested and returned to work after released on bail - Respondent realised likely staff may take view applicant guilty and make views known to him - Told employees not to harass applicant and he was innocent until proven otherwise - Applicant returned to work - Alleged disadvantaged by respondent's actions following incidents involving other employees - Applicant pleaded guilty and applied for sentence deferral - Court indicated deferral possible if imprisonment meant applicant likely to be dismissed - Respondent did not confirm would be dismissed - Applicant imprisoned then dismissed - Authority found fair and reasonable employer would not have done anything to influence sentencing - Justified in refusing to confirm dismissal likely until knew outcome of sentencing - None of respondent's actions unjustified - No disadvantage - UNJUSTIFIED DISMISSAL - Misconduct - Under disciplinary policy, respondent entitled to consider continued employment having regard to its reputation, responsibilities of applicant, nature of offence and other relevant factors - Applicant claimed conviction had no bearing on position and no effect on respondent's reputation - Authority did not accept because conduct occurred outside work could not amount to misconduct - Respondent entitled to consider continued employment when employee guilty of criminal offence at work or off duty - Publicity impacted on respondent's reputation - Fair and reasonable employer entitled to conclude sentencing meant applicant could not fulfil employment obligations, even taking into account possibility of home detention and leave - Applicant's actions caused him to be placed in position where could not perform obligations - Also entitled to conclude circumstances (including nature of conviction and publication of sentencing) meant foundation of trust and confidence significantly undermined - Dismissal substantively justified - Respondent visited applicant in prison and left dismissal letter with officials - Fair and reasonable employer would have written to applicant prior to visit advising dismissal considered - Meeting could have been opportunity to explain or mitigate conduct - On that basis, dismissal unjustified - However, even with fair process, outcome would have been same - Remedies - Blameworthy conduct so significant not entitled to remedies, save as to reasonable contribution to costs - Contributory conduct 100 percent - PRACTICE AND PROCDURE - Publication of names of daughter, Z, and other employee prohibited - Publication of emails between Z's union and respondent also prohibited - Length of service 15 years and three months with respondent and its predecessor - Aircraft engineer
Result: Application dismissed (Unjustified disadvantage) ; Application granted (Unjustified dismissal) ; Orders accordingly ; Costs reserved
Davies v Cityline (NZ) Ltd t/a Stagecoach Auckland
17 Oct 2006, L Robinson, AA 321/06, (11 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed after supervisor complained applicant verbally abusive and aggressive, and left bus unattended because unhappy with bus route - Respondent entitled to prefer supervisor's statement over applicant's equivocal denial - Full and fair process concluded applicant abused another employee - However, although applicant used bad language and displayed unacceptable attitude, did not direct abuse at supervisor - Did not constitute "abuse of an employee" justifying summary dismissal under collective agreement - Behaviour not repudiatory rendering continued relationship impossible - Taking into account applicant's service and previous warnings, fair and reasonable employer would not have reached decision to dismiss - Final warning would have been appropriate response - Unjustified dismissal - Remedies - Applicant equally as responsible for grievance as respondent - Failed to mitigate losses - Contributory conduct 50 percent - Also claimed six years wages as loss of future benefits - No entitlement given lack of certainty applicant would have worked at respondent for next six years - If sought would have reinstated - Duress - Applicant alleged at meeting respondent exerted undue influence on him to remain union member - No undue influence - No duress - BREACH OF CONTRACT - Damages for breach of contract arising out of dismissal not permissible - Length of service seven years seven months - Bus driver
Result: Application granted (Unjustified dismissal) ; Compensation for humiliation etc ($5,000 reduced to $2,500) ; Reimbursement of lost wages ($7,800 reduced to $3,900)(three months) ; Application dismissed (Duress, breach of contract)
Dr Y v Bay of Plenty District Health Board
27 Apr 2007, R Arthur, AA 128/07, (16 pages)
UNJUSTIFIED DISADVANTAGE - Applicant treated patient ("A") at respondent - After A declared feelings for applicant, A discharged to GP's care - Respondent investigated applicant's management of A's care after she committed suicide - Claimed disadvantaged by investigation and placement on garden leave - Whether full and fair investigation - By considering disciplinary action solely on circumstances of A's case, and not other patients, respondent did not fail to fully investigate - Applicant not told of recommendation he be dismissed for serious misconduct - Potential procedural error remedied by agreement serious misconduct conclusion was in relation to clinical issues, not employment - Review conducted properly and not, as applicant claimed, as part of campaign to undermine him - Applicant agreed to garden leave - Unjustified suspension claim failed - Force in argument matter took too long to resolve, but delay not solely respondent's responsibility - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Whether investigation disclosed conduct capable of being serious misconduct - Investigation found applicant failed to recognise A's emotional attachment and develop risk management plan - Concluded applicant's practice seriously threatened A's wellbeing - Provision of regular professional supervision relevant to whether actions serious misconduct in circumstances - Evidence supported view applicant resisted supervision - Despite knowledge of A's situation, applicant arranged for news of clinician change to be made by GP - Risk not adequately managed by applicant - A's medical file lacked proper diagnosis and documentation - Sufficient to raise significant concerns - Oram (cited below) standard applied - Respondent could reasonably conclude inadequacies in management of A's care amounted to misconduct of sufficient gravity to deeply impair basic trust and confidence - Entitled to dismiss for serious misconduct - Outcome may have been different under s103A Employment Relations Act 2000 test - Dismissal justified - PRACTICE AND PROCEDURE - Applicant's details (apart from gender and occupation) subject to non-publication order - A's and other patients' details also subject to order - Application for non-publication of respondent's name declined in public interest - Length of service 11 years - Psychiatrist
Result: Application dismissed (Unjustified disadvantage, unjustified dismissal) ; Application granted (Non-publication order) ; Orders accordingly ; Costs reserved
Green v Goodman Fielder New Zealand Ltd
29 Aug 2006, H Doyle, CA 131/06, (8 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal for assaulting co-worker "T" - Applicant placed on special leave for duration of investigation - Authority found no unfairness regarding special leave - During respondent's investigation, applicant claimed did not assault T - Respondent concluded as result of investigation provocation a factor and applicant hit T - After dismissed, applicant accepted did hit T but claimed self defence - Applicant aware code of conduct provided that "physical violence against any person" constituted serious misconduct - Provocation not accepted as excuse - Fact applicant dishonest during investigation not reason for dismissal - Authority found no reasonable possibility, suspicion, or danger of bias - Previous incident between applicant and T irrelevant to current investigation - Applicant claimed never asked by respondent to make formal complaint about T - Authority satisfied T's actions during incident investigated and considered as part of overall investigation into allegation against applicant - For purposes of investigation applicant had denied striking T, therefore respondent in those circumstances could not be expected to consider whether applicant acting in self defence - Reasonable for respondent to conclude from evidence that applicant hit T - Applicant's conduct what fair and reasonable employer would regard as serious misconduct - Dismissal justified - Length of service nine years - Qualified baker
Result: Application dismissed ; Costs reserved
Head v Goodman Fielder New Zealand Ltd
10 Oct 2006, H Doyle, CA 147/06, (8 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Summary dismissal - Dismissed for falsifying time records - Claimed applicant left work before shift ended and returned to clock out - Applicant claimed told not obliged to clock out and would be paid 50 hour week regardless of hours worked - Respondent's evidence preferred - Applicant usually paid less than 50 hour week - Did not specifically complain not given enough work to fill 50 hours - Hours had to be actually worked - Two reminders given on need to clock out - Unlikely applicant instructed not to clock out or told would be paid for 50 hours whether worked or not - Knew was responsible to clock in and out each day - Admitted conduct occurred on three occasions at disciplinary meeting - No evidence of ulterior motive for dismissal - Fair and reasonable employer would have given credit for admission, apology and length of service - Satisfied those matters considered - Full and fair investigation process - Summary dismissal available option - Fair and reasonable employer would have concluded falsification of time records serious misconduct and dismissed in circumstances - Dismissal justified - Length of service six years - Health and safety co-ordinator
Result: Application dismissed ; Costs reserved
McLennan v Tulloch Transport Ltd
4 May 2007, H Doyle, CA 49/07, (10 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant on final warning - Dismissed for "clipping" traffic sign with wing mirror while driving truck - Respondent conducted investigation - Respondent took measurements and concluded in report applicant must have driven outside white line and without due care, in breach of rules - Constituted "misuse" of company vehicle and serious misconduct under employment agreement - Authority found investigation not full and fair - Not told reason for dismissal was misuse until dismissal - Fair and reasonable employer would have provided applicant with measurements and report - "Misuse" usually involved deliberate use of vehicle other than for work purposes - Incident accidental while using truck for work purposes - Fair and reasonable employer would not have concluded misuse and serious misconduct - Could have been viewed as performance issue for which warning and training given - As result, applicant lost opportunity for disciplinary penalty short of dismissal - Open to respondent to impose lesser penalty - However, finely balanced whether would have dismissed applicant as on final warning - Steps taken after incident by reporting and repairing sign tipped balance in applicant's favour - Unjustified dismissal - Remedies - Contributory conduct 20 percent - Awarded one year's lost wages, less income earned and contribution - Length of service two years - Truck driver
Result: Application granted ; Reimbursement of lost wages (Quantum to be determined)(One year less income earned and contribution) ; Compensation for humiliation etc ($5,000 reduced to $4,000) ; Costs reserved
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