| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 322 |
| Hearing date | 3 Sep 2012 |
| Determination date | 13 September 2012 |
| Member | E Robinson |
| Representation | F Wood ; R Harrison |
| Location | Auckland |
| Parties | A v School Board of Trustees |
| Summary | INJUNCTION – Application for interim reinstatement – Authority found applicant’s alleged conduct outside work environment not irrelevant in context of applicant’s role as teacher – Found arguable case applicant would be reinstated if unjustifiably dismissed but not strongly arguable case – Found applicant not in precarious financial position and compensatory award could substantially restore applicant to pre-dismissal financial position – Found no suggestion respondent unable to meet any award in favour of applicant – Found balance of convenience favoured respondent – Found overall justice of case favoured declining application for interim reinstatement – Application for interim reinstatement declined – Teacher |
| Abstract | Applicant employed by respondent as teacher. Applicant sought interim reinstatement. Respondent received complaints from international students staying at applicant’s house alleging improper conduct of sexual nature by applicant. Respondent engaged independent investigator and applicant suspended on full pay. Applicant interviewed twice as well as members of applicant’s family. During investigation issues including pornography downloaded onto school laptop allocated to applicant came to light and investigated. After investigation completed applicant dismissed. Applicant claimed unjustifiably dismissed. Applicant claimed alleged incidents occurred in family home and not part of applicant’s role as teacher, and respondent had no policy regarding downloading of pornography. Applicant claimed respondent obtaining text messages between applicant and complainants breach of privacy and text messages taken out of context. Applicant claimed procedural flaws in investigation process. Applicant claimed arguable case for interim reinstatement as no alternative employment opportunities available to applicant apart from teaching and good level of support from fellow employees. Respondent claimed school principal had no trust and confidence in applicant and potential risk to safety of students if applicant granted interim reinstatement. Applicant claimed damages not adequate remedy due to lack of ability to gain alternative employment and fact applicant’s family would be extremely vulnerable financially having to rely on applicant’s wife’s income given wife’s medical condition. Respondent claimed applicant did not hold current practising certificate and principal would not sign off applicant’s fitness for registration. Respondent claimed unlawful to even place applicant on payroll and employment relationship could not be re-imposed successfully because applicant unable to fulfil applicant’s side of employment bargain without practising certificate. Applicant claimed respondent had been paying applicant when suspended despite applicant not having current practising certificate.;AUTHORITY FOUND –;INJUNCTION: Authority ordered non-publication of names of applicant, respondent school and complainants. Conduct taking place outside work environment may have impact on employer’s reputation and damage employer’s trust and confidence in employee. Applicant’s alleged conduct not irrelevant in context of applicant’s role as teacher. First reference to text messages made by applicant and respondent entitled to consider messages. Text messages included in evidence before Authority appeared to be inappropriate communications of sexual nature. Arguable case applicant would be reinstated if unjustifiably dismissed but not strongly arguable case. Applicant not in precarious financial position and compensatory award could substantially restore applicant to pre-dismissal financial position. No suggestion respondent unable to meet any award in favour of applicant. Having considered submissions, including in relation to applicant’s lack of current practising certificate, balance of convenience favoured respondent. Overall justice of case favoured declining application for interim reinstatement. Application for interim reinstatement declined. |
| Result | Application dismissed; Costs reserved |
| Main Category | Injunction |
| Statutes | Education Act 1989 s120A;Education Act 1989 s120B;ERA;ERA s103A;ERA s127;ERA s127(4);ERA s125(2);ERA Second Schedule cl10(1);Official Information Act 1982 |
| Cases Cited | Cliff v Air New Zealand Ltd [2005] ERNZ 1;McKean v Ports of Auckland Ltd (2011) 9 NZELR 24;Pacific Blue Employment & Crewing Ltd v B [2010] NZEmpC 112 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_322.pdf [pdf 198 KB] |