| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 252 |
| Hearing date | 26 Jun 2012 |
| Determination date | 25 July 2012 |
| Member | R Larmer |
| Representation | G Bennet ; E Inger |
| Location | Gisborne |
| Parties | Taiapa v Te Runanga O Turanganui A Kiwa t/a Turanga Ararau Private Training Establishment |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for misuse of sick leave discovered after photo posted on social media – Authority found respondent disclosed all information relating to specific disciplinary concerns and applicant given every opportunity to respond – Found sufficient evidence for respondent to conclude applicant had been at sporting event – Found respondent justified in concluding applicant not using sick leave to rest at home or seek medical assistance and travelling to different town with family for week amounted to misuse of sick leave – Found open to fair and reasonable employer to conclude applicant acted dishonestly and actions serious misconduct – Dismissal justified – Programme supervisor |
| Abstract | Applicant employed by respondent as programme supervisor. Applicant claimed unjustifiably dismissed by respondent. Applicant requested five days leave without pay at short notice. Manager (“M”) proposed applicant could have three days leave but required to work other two days as no one to cover applicant’s work. M requested applicant provide response before M went on leave next day but no response received. When M returned to work informed applicant on sick leave after claimed damaged calf muscle and saw doctor. Respondent attempted unsuccessfully to contact applicant and M informed applicant seen leaving town with family. M subsequently shown photo on Facebook showing applicant at sporting event and became suspicious applicant using sick leave to attend event. Applicant obtained retrospective medical certificate covering entire period applicant away. Over next month M attempted unsuccessfully to obtain information regarding why applicant had requested leave without pay on short notice without following correct procedures and did not respond to M’s compromise offer. Applicant provided with copies of notes of meetings for comment. Respondent initiated formal disciplinary process, set out information available to respondent and respondent’s concerns regarding genuineness of applicant’s sick leave. At disciplinary meeting applicant did not answer questions about whether applicant attended sporting event and resisted M’s attempts to obtain information regarding nature of applicant’s illness / injury. After subsequent meeting applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent disclosed all information relating to specific disciplinary concerns and applicant given every opportunity to respond. M approached matter with open mind and considered applicant’s explanations. Applicant did not attend doctor prior to taking leave and mislead respondent deliberately in this respect. Sufficient evidence for respondent to conclude applicant had been at sporting event. Reasonable for respondent to conclude applicant’s claim entitled to manage own health as applicant saw fit and applicant’s refusal to provide additional medical information unsatisfactory. Respondent justified in concluding applicant not using sick leave to rest at home or seeking medical assistance and travelling to different town with family for week amounted to misuse of sick leave. Respondent entitled to consider fact applicant’s earlier request for leave without pay over same period declined, applicant told required at work and did not respond to M’s counter proposal, and applicant’s failure to provide information aggravating features. Open to fair and reasonable employer to conclude applicant acted dishonestly and actions serious misconduct. Open to respondent to conclude applicant’s failure to respond to M’s counter proposal due to decision to take sick leave and applicant made deliberate decision not to communicate with respondent until after returned to work. Respondent’s concerns about applicant’s failure to answer questions justified. Dismissal justified. |
| Result | Application dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d) |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40;Griffith v Sunbeam Corp Ltd unreported, Couch J, 28 July 2006, WC13/06;Northern District Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Auckland_252.pdf [pdf 185 KB] |