| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 210 |
| Hearing date | 21 Dec 2011 |
| Determination date | 23 December 2011 |
| Member | D Appleton |
| Representation | M-J Thomas, R Donnelly ; J Copeland |
| Location | Invercargill |
| Parties | Shanmuganathan v Powernet Ltd |
| Summary | INJUNCTION – Application for interim reinstatement – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant used respondent’s resources for significant number of personal emails and calls – Parties’ employment agreement stated unauthorised use of respondent’s property was serious misconduct warranting dismissal – Applicant informally warned about email usage previously – Respondent’s web usage report showed at least 20 other employees had higher internet usage than applicant – Authority found as respondent cited internet access as one of issues in dismissal letter could not ignore report - Found when respondent relied on data to demonstrate serious misconduct needed to ensure fair and transparent analysis – Found number of discrepancies in report - Respondent claimed applicant had used respondent’s online subscriptions for personal use – Found respondent’s computer policy did not prohibit use of online subscriptions and doubtful whether fair to rely on as part of conduct justifying dismissal – Found phone call figures relied on by respondent partially reached by extrapolation and assumption – Applicant claimed unaware that respondent concerned about applicant’s activities – Found reasonable case that applicant expected warning first – Found were procedural fairness issues as applicant not given opportunity to comment on respondent’s performance concerns – Found applicant had arguable case had been unjustifiably dismissed - Found application for interim reinstatement to be determined under amended ss 103A and 125 Employment Relations Act 2000 – Respondent claimed not arguable case for reinstatement as had lost trust and confidence in applicant - Authority accepted respondent might have lost trust and confidence in applicant but found respondent’s conclusions could have been based on assumptions and inferences – Found respondent’s assertion that parties had worked well together indicated would not be adverse effect if applicant reinstated – Found was arguable case that both practicable and reasonable to reinstate applicant - Found applicant’s income from personal interests sufficient and unlikely to be substantial delay before substantive determination issued - Found however monetary compensation inadequate remedy due to applicant’s skills and age – Found applicant accepted computer and phone usage too high and respondent had significant resources available to monitor applicant’s conduct – Found potential mischief if applicant reinstated would not create material risk to respondent and applicant’s overall performance had not been challenged by respondent prior to dismissal – Found overall justice favoured reinstatement - Application for interim reinstatement granted subject to conditions - System Control Manager |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s103A;ERA s123;ERA s123(1)(a);ERA s127(2);ERA s127(4) |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] NZEMPC 160;Cliff v Air New Zealand Ltd [2005] ERNZ 1;Honda New Zealand Ltd v New Zealand Boilermakers Union (1990) ERNZ Sel Cas 855;Lewis v Howick College Board of Trustees (2010) 7 NZELR 539;X v Y Ltd and the New Zealand Stock Exchange [1992] 1 ERNZ 863 |
| Number of Pages | 21 |
| PDF File Link: | 2011_NZERA_Christchurch_210.pdf [pdf 96 KB] |