| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 183 |
| Determination date | 31 May 2012 |
| Member | E Robinson |
| Representation | D Law ; A Swan |
| Location | Auckland |
| Parties | McKenzie v Dawsons Catering Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant claimed treated differently to other employees – Authority found respondent reasonably concluded applicant intoxicated while off-duty and fair and reasonable employer could have dismissed applicant - Found respondent failed to confirm allegations in writing after applicant suspended therefore respondent did not follow fair procedure - Dismissal unjustified – No unjustified disadvantage - REMEDIES - 90 per cent contributory conduct - $300 compensation appropriate – Accommodation and Food Services Sector |
| Abstract | Applicant employed by respondent as operations manager at functions venue (“C”). Applicant claimed unjustifiably dismissed by respondent. Applicant was socialising at C off-duty. Respondent operations manager (“B”) claimed applicant intoxicated and acting inappropriately at C. B claimed applicant had previously been intoxicated when socialising at C. Respondent human resources manager (“M”) claimed respondent employees said applicant had been drinking while working, opening accounts without authorisation and abusing co-workers. Investigation commenced. Applicant denied had read respondent’s alcohol policy when employment commenced. M claimed applicant arrived at work early next day and, as refused to leave when M requested applicant do so, suspension only option. Applicant suspended. Applicant denied was told parties’ meeting disciplinary and could be dismissed. Applicant claimed treated differently to co-workers also intoxicated while on respondent premises. Applicant accepted had consumed alcohol while working but claimed only when senior employees offered applicant alcohol or consented to applicant consuming alcohol. Applicant denied had been intoxicated while working but agreed had been intoxicated while on respondent premises and had opened accounts without authorisation. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant aware of respondent’s alcohol policy that if applicant showed signs affected by alcohol on respondent premises would amount to serious misconduct. Respondent had reasonably concluded applicant intoxicated while off-duty. Only one of respondent’s allegations defined as serious misconduct in respondent policy but respondent decision to dismiss applicant justified. However respondent failed to confirm allegations in writing after applicant suspended therefore respondent did not follow fair procedure. Dismissal unjustified. REMEDIES: 90 per cent contributory conduct. $300 compensation appropriate. UNJUSTIFIED DISADVANTAGE: Respondent unaware of allegations employee intoxicated while on respondent premises and another employee (“B”) very remorseful when respondent commenced disciplinary action. Open to respondent to conclude B should not be dismissed yet applicant’s conduct and attitude warranted dismissal. No disparity of treatment. No unjustified disadvantage. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (90%) ; $300 compensation for humiliation etc ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103(3)(b);ERA s124 |
| Cases Cited | Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767;Cooke v Tranz Rail Ltd (formerly New Zealand Rail Ltd) [1996] 1 ERNZ 610;Samu v Air New Zealand Ltd [1995] 1 ERNZ 636 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Auckland_183.pdf [pdf 172 KB] |