| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 96 |
| Hearing date | 18 Jul 2012 |
| Determination date | 27 August 2012 |
| Member | M Ryan |
| Representation | P Hunt ; D Abraham |
| Location | Napier |
| Parties | Sayers v S B McPherson Holdings Ltd t/a Boulevard Services |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found respondent raised concerns with applicant and gave applicant opportunity to respond - Found unlikely applicant advised not to report minor accidents – Found open to respondent to conclude lost trust and confidence in applicant - Dismissal justified - Supervisor |
| Abstract | Applicant employed by respondent as supervisor. Applicant claimed unjustifiably dismissed by respondent. Applicant received final written warning one month prior to events that led to applicant’s dismissal. Applicant involved in accident whereby employee who reported to applicant (“D”) became injured at premises of respondent’s major client (“PP”). Following accident applicant approached by PP supervisor (“B”) and told to report accident to security. Applicant claimed unnecessary to report minor accidents. B insisted. Applicant reported accident. B called respondent’s director (“M”) to meeting to express concern that applicant failed to report accidents on M’s instruction. B mentioned further accident that applicant failed to report. M denied instructing applicant not to report minor accidents. Applicant received request from respondent to attend disciplinary meeting. Applicant accepted intended not to report accident but denied telling B M’s instruction the reason. Applicant claimed told not to report minor accidents. Respondent expressed concerns of lost trust and confidence in applicant. Respondent made further enquiries with D and B who disputed applicant’s version of events. At meeting held following day applicant claimed instruction not to report minor accidents common knowledge and M had advised applicant not to report minor accidents. Applicant refused to explain exactly what M said regarding minor accidents. Applicant dismissed. Applicant claimed used “as sacrificial lamb” so respondent could maintain appearance with PP.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent complied with procedural fairness requirements by raising concerns with applicant and providing applicant opportunity to respond. Applicant’s alleged reasoning for not reporting D’s accident of concern to respondent and open to respondent to raise concerns even though applicant did report accident. Applicant did not refer to M in conversation with B following accident. Reasonable for respondent not to accept applicant’s common knowledge explanation. Applicant aware allegations serious and provided with opportunity to explain and to preserve employment but did not provide information in support of explanation. Unlikely M advised applicant not to report minor accidents. No evidence applicant dismissed so respondent could avoid scrutiny from PP of health and safety practices. Previous warning outlined further breach of company rules without acceptable explanation would result in termination. Open to respondent to conclude lost trust and confidence in applicant. Dismissal available to fair and reasonable employer. Dismissal justified. |
| Result | Application dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(2) - ERA s103A(3)(a) - ERA s103A(3)(b) - ERA s103A(3)(c) - ERA s103A(3)(d) |
| Number of Pages | 15 |
| PDF File Link: | 2012_NZERA_Wellington_96.pdf [pdf 247 KB] |