| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 10 |
| Hearing date | 5 Dec 2011 - 6 Dec 2011 (2 days) |
| Determination date | 16 January 2012 |
| Member | D Appleton |
| Representation | J Beck ; L Brook |
| Location | Dunedin |
| Parties | Leurquin v Dunedin City Council |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent - Applicant employed in respondent’s museum – Applicant approached by member of public (“F”) about applicant assessing F’s ceramic for restoration – F brought ceramic to workplace for applicant to inspect – Applicant agreed would restore ceramic as private job – Parties disputed whether applicant had stored ceramic in respondent’s blanket and box at workplace overnight – Museum director (“W”) claimed applicant had breached employment agreement’s (“EA”) conflict of interest clause by agreeing to restore ceramic in private capacity and, as ceramic wrapped in F’s blanket, applicant had risked contaminating museum’s laboratory – Investigation commenced – Applicant claimed respondent’s previous managers had allowed applicant to carry out private work – Respondent interviewed F and claimed inconsistencies between applicant and F’s evidence – Applicant claimed discovered further possible misconduct – Applicant suspended – Authority found applicant not given opportunity to comment on suspension and no evidence suspension necessary step – Unjustified disadvantage - Applicant claimed respondent already decided applicant’s actions were serious misconduct before disciplinary meeting – Applicant dismissed – Respondent claimed applicant had used employment to obtain personal benefit and had accepted payment without respondent’s authorisation – Applicant claimed respondent had never explained EA’s standards for staff conduct – Found no evidence applicant had advertised employment in order to enhance reputation or had usurped respondent’s position by taking work privately – Found fair and reasonable employer would not have concluded that applicant agreeing to carry out private work while physically at workplace breached EA or that applicant used position of influence to obtain benefit – Found EA’s conflict of interest clause only prevented direct competition with respondent and applicant provided different service to F – Found applicant’s actions did not bring respondent into disrepute – Found at time of applicant’s dismissal rules around employees accepting private work unclear – Found applicant left ceramic in F’s blanket overnight – Found applicant previously advised other employees of infestations risks - Found reasonable for respondent to conclude applicant had potentially and knowingly contaminated respondent’s sterile environment and amounted to serious misconduct – Found applicant misled respondent about time met F – Found respondent’s dismissal letter convinced applicant respondent had already decided applicant had committed serious misconduct and no point in providing explanation at disciplinary meeting therefore procedurally unfair – Dismissal unjustified – REMEDIES – 50 per cent contributory conduct but found applicant did not contribute to suspension - Applicant sought reinstatement - Found reinstatement not practicable or reasonable due to current conservators’ role in respondent’s redevelopment programme – Found likely applicant would not find similar role for some time due to specialist nature of skills and age – Found likely applicant would have remained in role for at least another six months if not dismissed - $7,500 compensation appropriate for unjustified dismissal - $5,000 compensation appropriate for unjustified disadvantage - $21,946 reimbursement of lost wages - Senior Conservator |
| Result | Applications granted ; Contributory conduct (50%) ; Reimbursement of lost wages ($21,946) ; Compensation for humiliation etc ($5,000)(unjustified disadvantage) ; Compensation for humiliation etc ($7,500)(unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103A;ERA s103A(4);ERA s123(1)(b);ERA s124;ERA s125(2);ERA s128;ERA s128(2);ERA s128(3) |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] NZEMPC 160;Canterbury Rubber Workers IUOW v Dunlop NZ Ltd [1983] ACJ 367;Dodd v Secretary for Justice unreported, D King, 17 December 2009, WA 201/09;Sam’s Fukyama Food Services Ltd v Zhang [2011] NZCA 608;Sefo v Sealord Shellfish Ltd [2008] ERNZ 178;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315 |
| Number of Pages | 26 |
| PDF File Link: | 2012_NZERA_Christchurch_10.pdf [pdf 119 KB] |