| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 200 |
| Hearing date | 10 May 2011 - 23 May 2011 (3 days) |
| Determination date | 14 December 2011 |
| Member | P Cheyne |
| Representation | A Sharma ; M Kirk |
| Location | Nelson |
| Parties | McDonald v Porse In-Home Childcare (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority previously declined applicant’s interim reinstatement application – Applicant went camping and used work car which was branded in highly visible way with company name – Verbal disagreement between applicant and other campers – Respondent received three written complaints about applicant’s behaviour at camping ground – Complainants claimed applicant verbally abused young children, threatened to throw bucket of water on children’s parents and verbally abused them, yelled at own children, and drove with children unrestrained – Consultant (“C”) made written complaint about applicant to Team Coach (“M”) which included allegations of illegitimate use of flexi time – M never told applicant about C’s complaint and not disclosed until after dismissal – Applicant invited to attend investigation meeting – Respondent claimed applicant brought respondent into disrepute by reason of camping events, breach of vehicle agreement by not having authorisation to take car out of region, and failure over many weeks to work 40 hours as contractually agreed – Applicant claimed allegations grossly inaccurate as spoke to children at camping ground politely but parents took offence, did not yell at own children, and did not drive with two children unrestrained – Applicant claimed did not know camping ground was out of region and if in breach of car policy did not do so deliberately – Applicant claimed entitled to work from home – Applicant claimed recent instruction not to work from home was attempt to unilaterally vary employment agreement (“EA”) – M met with C and another colleague (“W”) who made further complaints about applicant involving hours of work and aggressive nature – Respondent determined allegation that applicant breached EA by not working contracted hours made out – Respondent claimed likely that applicant yelled at children at camping ground and had further exchange with parents – M claimed sufficient relationship between applicant’s conduct at camping ground and nature of respondent’s business for reputation to be affected negatively – Respondent eventually decided applicant had not done anything improper in taking company car out of region – Applicant dismissed – Authority found EA provided for limited use of flexi time – Found respondent’s failure to provide applicant with written complaint from C was failure to fully investigate allegations of serious misconduct – Found Team Coach (“K”) did not actually know if one of complainants from camping ground was credible and trustworthy – Found K did not know complainant and lack of connection with complainant should have been disclosed – Found respondent did not accept all allegations by complainants but did not discount any of complainants’ alleged negative view of respondent and applicant – Found fair and reasonable employer would not have dismissed applicant in all circumstances – Dismissal unjustified – REMEDIES – No contributory conduct – Authority accepted friend’s (“V”) evidence who was camping with applicant – V claimed complainants embellished incident to make it appear far worse than what took place – Authority accepted applicant’s evidence about exchanges with children at camping ground – Applicant sought reinstatement – Found amendment to s125 Employment Relations Act 2000 did not have retrospective effect and therefore law prior to amendment must be applied – Found C and W concerned about work if applicant reinstated – Found positive working relationship could be re-established – M claimed applicant would not have appropriate certification to support application for teacher’s practicing certificate – Found no complaint made to Teachers Council – Found no performance issues that created impediment to reinstatement – Found number of respondent contractors supportive of applicant – Found respondent large organisation with sufficient resources and experience to reintegrate applicant into office – Reinstatement ordered – Three months reimbursement of lost wages appropriate with any earnings during period to be deducted – $15,000 compensation appropriate – $2,000 per annum pro rata compensation for lost benefit of full use of vehicle appropriate - $600 compensation for lost benefit of bonus payment appropriate – Interest payable – Consultant and Programme Tutor |
| Result | Application granted ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($15,000) ; Compensation for loss of benefit (quantum to be determined)(Full use of vehicle) ($600)(Bonus) ; Interest (5%) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b);ERA s4(1A)(c);ERA s124;ERA s125;ERA s125(1)(a);ERA s125(1)(b);Employment Relations Amendment Act 2010;Interpretation Act 1999 s7;Interpretation Act 1999 s17;Interpretation Act 1999 s18;Interpretation Act 1999 s18(1);Interpretation Act 1999 s18(2) |
| Cases Cited | Argosy Imports Limited v Lineham [1998] 3 ERNZ 976;Art Deco Society (Auckland) Inc v Auckland City Council [2006] NZRMA 49;DB Breweries Limited v Hodgson unreported, Travis J, 14 Oct 1996, AEC 68/96;Dryden v The Radio Network of New Zealand Ltd unreported, V Campbell, 14 Jan 2009, AA 9/09;Foodstuffs (Auckland) Limited v Commerce Commission [2002] 1 NZLR 353;Kahn v Oracle New Zealand Limited [2011] NZERA Auckland 177;McDonald v Porse In-Home Childcare (NZ) Ltd [2011] NZERA Christchurch 46;Mussen v NZ Clerical Workers Union [1991] 3 ERNZ 368;Radius Residential Care Ltd v McLeay [2010] ERNZ 371;Swann & Ors v ACI NZ Ltd [1990] 3 NZILR 263 |
| Number of Pages | 37 |
| PDF File Link: | 2011_NZERA_Christchurch_200.pdf [pdf 189 KB] |