| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 361 |
| Hearing date | 20 Sep 2012 |
| Determination date | 12 October 2012 |
| Member | A Fitzgibbon |
| Representation | S Mitchell ; R McIlraith, K Dunn |
| Location | Auckland |
| Parties | Findlay v Ports of Auckland Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent issuing written warning – Applicant removed letter relating to disciplinary investigation involving another respondent employee from respondent manager’s (“H”) office - Authority noted applicant made no attempt to contact H directly for permission to retrieve letter – Authority found applicant could have asked H to disregard letter – Found applicant was in possession of respondent’s property without authority - Applicant’s conduct misconduct not serious misconduct however serious enough to justify respondent issuing written warning – No unjustified disadvantage - Stevedore |
| Abstract | Applicant employed as stevedore. Applicant claimed unjustifiably disadvantaged by respondent issuing written warning. Respondent claimed written warning justified on grounds of serious misconduct. Respondent employee (“D”) requested applicant retrieve letter D had slid under respondent manager’s (“H”) door. Applicant removed letter. Respondent investigated matter and concluded applicant had removed letter from H’s office without authority and amounted to serious misconduct. H conducting investigation into D’s involvement in allegedly disclosing respondent’s confidential information to union. H requested D respond to H’s questions. D and applicant aware H away day D put letter responding to H’s questions under H’s door. D and applicant’s evidence about what happened day D put letter under H’s door contradictory. Applicant asked supervisor (“K”) to unlock H’s office as needed to retrieve letter. K claimed wished to deter applicant and told applicant had key to H’s office although did not have key and later offered applicant short ruler. Applicant used another longer ruler to retrieve letter from under H’s door. Respondent manager (“G”) saw applicant retrieving letter. Applicant’s refused G’s request to give G letter. G told applicant should call H and applicant called H shortly after and told H had removed D’s letter from H’s office. H claimed applicant’s actions amounted to theft and applicant had interfered in H’s investigation into D. H requested applicant return letter immediately. Applicant claimed K authorised removal of letter as K attempted to unlock H’s door and gave applicant ruler.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: D put letter under H’s door then told applicant what had done. Applicant sought legal advice about matter and was advised to retrieve letter. D and applicant discussed legal advice and D asked applicant to retrieve letter. Authority noted applicant made no attempt to contact H directly for permission to retrieve letter. Applicant could have asked H to disregard D’s letter. K not involved in H’s investigation into D’s conduct and did not have authority to grant applicant permission to retrieve letter. Even if K had authorised applicant’s actions, G and H’s response made it clear to applicant was in possession of respondent’s property without authority. Applicant’s conduct misconduct not serious misconduct however serious enough to justify respondent issuing written warning. Respondent acted in procedurally fair manner. No unjustified disadvantage. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103A;ERA s103A(2);ERA s103A(3) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_361.pdf [pdf 246 KB] |