| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 542 |
| Hearing date | 30 Aug 2011 - 31 Aug 2011 (2 days) |
| Determination date | 20 December 2011 |
| Member | R Arthur |
| Representation | M Whitehead ; M Kamphorst |
| Location | Auckland |
| Parties | van der Hoeven v Alloy Yachts International Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably disadvantaged and dismissed by respondent – Applicant critical of management decisions when believed resulted in deficiencies – Respondent engineering manager (“S”) and engineering design manager (“A”) concerned about applicant’s angry outbursts – S and A told applicant to ‘toe the line’ and follow instructions – S directed applicant not to work Saturday mornings but applicant ignored instruction – Applicant attended disciplinary meeting with step-sister (“F”), respondent human resources manager (“E”), S and A regarding allegations of disruptive behaviour and failing to follow instructions – F raised possibility of applicant taking medical leave to attend programme for alcohol abuse or dependency – Respondent accepted F’s proposal – Applicant signed agreement which stated applicant would take leave to attend programme – Applicant attended assessment for treatment programme but did not enter it – Applicant agreed to visit psychotherapist (“R”) – Respondent not satisfied R’s report showed applicant had made sufficient progress to return to work – R told respondent applicant ready to return to work and applicant’s GP told respondent applicant physically fit and able to work – Respondent not satisfied applicant able to return to work – Respondent resumed disciplinary investigation and concluded dismissal appropriate – Authority found leave agreement not unjustified suspension but attempted remedial measure agreed during disciplinary investigation – Found no agreement that disciplinary investigation abandoned as result of leave agreement – Applicant claimed unfair collusion between F and E and questioned whether F attended disciplinary meetings as own representative or representative of family – Found accusations had no negative consequence for justifiability of respondent’s actions – Applicant claimed no preconditions for return to work were agreed and leave should have ended once leave entitlements exhausted – Found argument failed as inconsistent with plain wording of agreement and all other witnesses involved confirmed applicant’s return conditional on applicant having undergone treatment – Found respondent undertook fair and reasonable investigation – Found open to respondent to conclude applicant’s failure to undertake expected treatment actions further instance of attitude that led to need for disciplinary action – Found open to respondent to prefer subjective assessments of applicant’s capacity and likely behaviour over GP’s and R’s assessments – Found payment of notice did not negate respondent’s finding of serious misconduct – No disadvantage – Dismissal justified |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s174 |
| Number of Pages | 14 |
| PDF File Link: | 2011_NZERA_Auckland_542.pdf [pdf 62 KB] |