| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 549 |
| Hearing date | 15 Aug 2011 |
| Determination date | 22 December 2011 |
| Member | K J Anderson |
| Representation | R Walker ; K Radich |
| Location | Hamilton |
| Parties | Jensen v Chief Executive of the Department of Corrections |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent - Applicant, co-worker (“P”) and senior officer (“H”) accompanied prisoner (“Z”) to shower – Z delayed having shower and attempted to block toilet – Applicant told Z if Z did not have shower would be returned to cell – Z became abusive – Applicant claimed decided Z’s cell should be cleared of anything that Z could throw at applicant or co-workers before Z returned – Applicant removed Z’s urine bucket from cell to ablutions area so bucket could be emptied – Applicant claimed “snapped” after Z’s abuse continued and threw contents of bucket towards Z while Z behind locked grill – Applicant claimed immediately realised actions were wrong, co-workers took over and returned Z to cell - Respondent’s CCTV recording showed applicant took bucket from Z’s cell but then returned bucket, pushed Z’s clothes on to floor, again retrieved bucket from cell and threw contents of bucket towards Z – Recording showed no indication applicant or co-workers concerned by applicant’s actions – Recording showed further exchange between applicant and Z when Z returned to cell – Investigation commenced – Applicant acknowledged had thrown bucket contents towards Z while Z behind locked grill - Respondent requested submissions from applicant why applicant should not be suspended – Applicant suspended after prison manager (“F”) concluded applicant planned and threw contents of urine bucket over Z – Applicant advised at meeting respondent had formed preliminary view that applicant should be dismissed and applicant could make further submissions – Applicant dismissed – P claimed applicant indicated to P and H would throw bucket contents over Z but H gestured that applicant should not do it – Authority found applicant returned bucket to Z’s cell after indicated to P and H would throw contents but later pushed Z’s clothes on to floor, retrieved bucket and threw contents at Z - Authority found recording showed applicant’s actions not spontaneous - Respondent claimed applicant’s conduct should be viewed in light of respondent’s code of conduct, relevant legislation and international guidelines – Found applicant’s conduct amounted to serious misconduct and disciplinary sanctions available to respondent – Applicant claimed respondent’s investigation flawed – Found F carried out full and fair investigation – Applicant claimed was inexperienced and respondent failed to appropriately induct applicant when applicant moved to new unit – Found applicant experienced officer – Found throwing bucket containing urine at Z behind locked grill could be seen as inhumane, degrading and humiliating for Z and abuse of applicant’s power over Z - Applicant claimed co-workers subject to lesser sanctions when similar incidents occurred previously – F claimed mitigating factors meant other incidents different from applicant’s actions – Found insufficient tangible evidence about alleged incidents or applicant’s personal circumstances – Found although Z’s behaviour challenging respondent entitled to expect applicant’s training meant applicant would deal with behaviour appropriately – Found fair and reasonable employer in all circumstances would have concluded applicant’s conduct destroyed respondent’s confidence and trust in applicant - Dismissal justified - Corrections Officer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Corrections Act 2004 s5;Corrections Act 2004 s14;ERA s103A;ERA Second Schedule cl10;State Sector Act 1988 s56(3);United Nations Standard Minimum Rules for the Treatment of Prisoners |
| Cases Cited | Airline Stewards and Hostesses of New Zealand IUOW v Air New Zealand Ltd [1990] ERNZ Sel Cas 985;Air New Zealand Ltd v Hudson [2006] ERNZ 415;Air New Zealand Ltd v V [2009] ERNZ 185;Honda New Zealand Ltd v New Zealand Boilermakers Union [1990] ERNZ Sel Cas 855;BP Oil New Zealand Ltd v Northern Distribution Union [1992] 3 ERNZ 483 |
| Number of Pages | 20 |
| PDF File Link: | 2011_NZERA_Auckland_549.pdf [pdf 99 KB] |