| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 62 |
| Determination date | 05 June 2012 |
| Member | P R Stapp |
| Representation | S Hornsby-Geluk, M Vant ; R Foitzik, A Berry |
| Location | Wellington |
| Parties | Beacham v Chief Executive of the Ministry of Social Development |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found written warning for misconduct relied on by respondent not expired – Found fair and reasonable employer would have categorised applicant’s conduct as poor performance rather than misconduct and respondent unable to rely on previous warning – Found process fair and applicant not prejudiced by length of investigation – Dismissal unjustified – REMEDIES – No contributory conduct – Applicant sought reinstatement – Found reinstatement not practicable and reasonable – Respondent to pay applicant reimbursement of lost wages, parties to determine quantum - $12,000 compensation appropriate – Leave reserved for parties to apply to Authority to determine outstanding holiday pay – Social worker |
| Abstract | Applicant employed by respondent as social worker. Applicant claimed unjustifiably dismissed by respondent. Applicant subject to written warning for misconduct. Applicant subject to oral and first written warning for poor performance. Respondent received complaint about applicant’s conduct at meeting. Respondent claimed applicant’s actions brought respondent into disrepute. Respondent accepted applicant’s actions not serious misconduct but decided to dismiss applicant because applicant already on final warning for misconduct. Applicant dismissed. Applicant claimed respondent unable to rely on final written warning for misconduct because warning expired. Applicant claimed respondent should have treated complaint as performance matter rather than misconduct and given applicant final written warning. Applicant claimed respondent’s investigation too long.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of names of respondent’s clients. Applicant’s written warning for misconduct not expired. Fair and reasonable employer could not conclude applicant’s conduct brought respondent into disrepute because matter not known outside limited group. Respondent unable to rely on written warning for misconduct because fair and reasonable employer would have categorised applicant’s conduct as poor performance. Process fair and applicant not prejudiced by length of investigation. Dismissal unjustified. REMEDIES: No contributory conduct. Applicant sought reinstatement. On-going performance issues meant reinstatement not practicable and reasonable. Respondent to pay applicant reimbursement of lost wages, parties to determine quantum. $12,000 compensation appropriate. Leave reserved for parties to apply to Authority to determine outstanding holiday pay. |
| Result | Application granted; Reimbursement of lost wages (parties to determine quantum); Compensation for humiliation etc ($12,000); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Wellington_62.pdf [pdf 130 KB] |