| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 351 |
| Hearing date | 14 Sep 2012 |
| Determination date | 09 October 2012 |
| Member | A Fitzgibbon |
| Representation | W Reid, R Rolston ; S Wilson |
| Location | Tauranga |
| Parties | Hiha v Crane Distribution NZ Ltd |
| Summary | UNJUSTIFED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant accepted accessed pornography during work hours on respondent’s computer - Authority found applicant prepared to engage in conduct applicant aware unacceptable and in breach of respondent’s internet policy – Found applicant’s conduct destroyed respondent’s trust and confidence in applicant and could be regarded as serious misconduct – Found respondent’s decision to dismiss applicant open to fair and reasonable employer in circumstances – Found respondent’s investigation procedurally fair - Dismissal justified – Storeperson |
| Abstract | Applicant employed by respondent as storeperson. Applicant claimed unjustifiably dismissed by respondent. Applicant accepted accessed pornography during work hours on respondent’s computer. Respondent’s internet policy stated viewing pornographic material on respondent’s internet would result in disciplinary action. Applicant aware of respondent’s internet policy but claimed conduct did not amount to serious misconduct. Respondent employee told applicant’s manager had seen applicant viewing pornographic images on respondent’s computer. Investigation commenced. Respondent’s computer reports showed applicant viewed pornographic images regularly over at least three month period. Applicant advised respondent’s preliminary conclusion was that applicant’s employment should be terminated but applicant had opportunity to comment. Applicant made no further comments. Applicant dismissed. Applicant claimed other employees not dismissed for similar conduct and respondent’s internet policy did not set out what types of pornography could result in dismissal if viewed by applicant.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant prepared to engage in conduct applicant aware unacceptable and constituted serious misconduct. Images viewed by applicant graphic and objectionable. Applicant’s conduct destroyed respondent’s trust and confidence in applicant and could be regarded as serious misconduct. Applicant aware conduct contrary to respondent’s internet policy. Respondent’s decision to dismiss applicant open to fair and reasonable employer in circumstances. Respondent’s investigation procedurally fair. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(2);ERA s103A(3) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Beazley v Telecom New Zealand Ltd unreported, K Anderson, 26 March 2003, AA84/03;BP Oil New Zealand Ltd v Northern Distribution Union [1992] 3 ERNZ 483;Safe Air Ltd v Walker (2009) 6 NZELR 761 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Auckland_351.pdf [pdf 257 KB] |