| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 222 |
| Hearing date | 17 Jul 2012 - 18 Jul 2012 (2 days) |
| Determination date | 17 October 2012 |
| Member | D Appleton |
| Representation | H McKinnon ; B Pepperell |
| Location | Nelson |
| Parties | Stuart v Downer New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent – Authority found respondent’s investigation sufficient and fair – Found not unreasonable for respondent to conclude in circumstances applicant had submitted false daily job records – Found respondent’s decision dismissal appropriate one of fair and reasonable employer in light of circumstances including applicant being employed in position of trust and daily job record discrepancies not minor - Dismissal justified – PRACTICE AND PROCEDURE – BREACH OF CONTRACT – Respondent counterclaimed applicant had breached duty of trust and confidence and sought damages - Respondent’s counterclaims arguable and not frivolous or vexatious – Found however respondent’s claim based on assumption that applicant did not do any work at home during mid-day period or at end of day – Found applicant did carry out some maintenance and preparatory work while at home during work hours and not just to allow claim based on incorrect assumption – Found applicant did breach duty of trust and confidence but damages not appropriate – No damages - Mobile Patrolman |
| Abstract | Applicant employed as mobile patrolman. Applicant claimed unjustifiably dismissed by respondent. Respondent claimed applicant justifiably dismissed after discovered applicant had falsified timesheets. Applicant’s position required applicant to undertake maintenance duties in particular area and fill in daily job records recording total number of hours applicant worked. Applicant’s work vehicle fitted with GPS. GPS records included times and address vehicle engine started and stopped. Applicant’s supervisor claimed applicant hard to contact at end of work day and requested respondent manager (“O”) review applicant’s GPS records. O discovered was often discrepancy between time of last engine stop and applicant’s finish time in job records. Investigation commenced. Applicant aware respondent would treat falsifying documents as serious misconduct. Applicant claimed regularly carried out work for respondent at home as kept work materials at home. Applicant suspended. Respondent produced further daily job records at parties’ second meeting. Applicant claimed would return home to prepare for next day’s work and complete paperwork. Witnesses claimed applicant took longer for lunch breaks than allocated 30 minutes. Applicant dismissed. Applicant claimed dismissal predetermined and respondent’s investigation insufficient. Applicant claimed dismissed “overly harsh” in light of service record with respondent. Respondent counterclaimed for damages as claimed applicant had breached duty of trust and confidence. Respondent did not raise counterclaim until after briefs of evidence had been served. Applicant claimed respondent’s counterclaim out of time and frivolous and vexatious.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent’s records taken from GPS in applicant’s work vehicle likely to be materially accurate. Authority noted applicant spent majority of time working alone and therefore respondent not in position to verify what applicant had been doing while at home during workday. Applicant could have agreed to flexible working arrangement with previous manager but should have explained agreement to respondent when investigation commenced. Respondent should have given applicant more opportunity to explain discrepancies in specific daily job records but information not crucial in respondent’s decision applicant would be dismissed. Respondent’s investigation sufficient and fair. Not unreasonable for respondent to conclude in circumstances applicant had submitted false daily job records. Applicant’s union representative conduct diffident and contributed to respondent’s conclusion applicant had no material response to allegations but representative’s conduct not so egregiously unfair that applicant significantly prejudiced. Respondent’s decision not predetermined. Respondent’s decision dismissal appropriate one of fair and reasonable employer in light of circumstances including applicant being employed in position of trust and job record discrepancies not minor. Dismissal justified.;PRACTICE AND PROCEDURE – BREACH OF CONTRACT: Respondent’s counterclaims not out of time. Respondent claimed applicant had breached duty of trust and confidence by claiming pay for work applicant did not do. Respondent’s counterclaims arguable and not frivolous or vexatious. However respondent’s claim based on assumption that applicant did not do any work at home during mid-day period or at end of day. Applicant did carry out some maintenance and preparatory work while at home during work hours and not just to allow claim based on incorrect assumption. Applicant did breach duty of trust and confidence but damages not appropriate. No damages. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s45(2);ERA s103A;ERA s142;ERA s161;ERA s162;Legal Services Act 2011 |
| Cases Cited | Air Nelson Ltd v Minister of Transport [2008] NZCA 26;Bushell v Secretary of State for the Environment [1980] 2 All ER 608;Wadley v Salon D’Orsay Ltd [1998] 1 ERNZ 369 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Christchurch_222.pdf [pdf 265 KB] |