| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 241 |
| Hearing date | 10 Sep 2012 - 11 Sep 2012 (2 days) |
| Determination date | 06 November 2012 |
| Member | D Appleton |
| Representation | J Goldstein ; L Brook |
| Location | Christchurch |
| Parties | Watson v Oceana Gold (New Zealand) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by final written warning and unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed after inappropriate interactions with subordinate employee (“B”) – Authority found although no meeting with applicant before issued with final written warning, applicant aware of respondent’s concerns, respondent took applicant’s explanation into account and applicant signed warning to acknowledge understood implications – No unjustified disadvantage – Found given respondent’s characterisation of applicant’s threat to curtail B’s hours as unwelcome behaviour towards another person, overbearing supervision and inappropriate behaviour towards a subordinate, applicant’s conduct capable of being treated as serious misconduct – Found totality of documents provided to applicant made detailed allegations clear – Found respondent failed to make clear to applicant previous warning relevant or give applicant opportunity to comment – Found manager (“J”) should have re-interviewed witness (“S”) to put to S applicant’s account of conversation overheard by S – Found J should have interviewed B given B declined to speak to employee responsible for producing report, fact applicant had raised complaint about being bullied by B, and fact applicant was dismissed on strength of written complaint by B – Found respondent did not investigate applicant’s explanations fully – REMEDIES – 75 per cent contributory conduct – Respondent to pay applicant $4,726 reimbursement of lost wages – $2,500 compensation appropriate – Maintenance supervisor |
| Abstract | Applicant employed by respondent as maintenance supervisor. Applicant claimed unjustifiably disadvantaged by final written warning and unjustifiably dismissed by respondent. Applicant opened electrical cabinet to remove blown fuse. Applicant’s subordinate (“B”) knew applicant not qualified in New Zealand and should not have removed fuse. B filed incident report and applicant told by manager (“J”) not to open electrical cabinets. Three weeks later applicant opened electrical cabinet after equipment fault and B filed incident report. Applicant informed by acting manager (“O”) incident report made and O requested applicant not speak to B about applicant opening cabinet without third party present. Following day applicant spoke to B. B claimed applicant intimidating and inferred applicant asking B to withdraw incident report. B claimed applicant threatened to ‘come down hard’ on B. Applicant claimed attempted to make B aware not talking to B about opening cabinet. Applicant claimed asked B to provide all hours worked by B on certain project to ascertain how cost of project to be determined. B claimed accepted applicant’s subsequent apology grudgingly and only for part of applicant’s conduct. B claimed applicant attempted twice more during day to get B to withdraw incident report. Applicant telephoned B that night but claimed B’s first response statement B would be seeking legal advice. B submitted incident report regarding interactions with applicant. On same day applicant issued with final written warning for opening electrical cabinet. Applicant required to attend meeting and handed letter setting out allegations applicant threatened to come down hard on B if B did not withdraw incident report, put pressure on B to withdraw incident report, breached O’s instruction not to talk to B without third party present, and demonstrated ‘offensive, arrogant and intimidating’ attitude and manner. Applicant suspended. Applicant responded to allegations and also stated intention to pursue claim bullied by B once current issues finalised. After report prepared by respondent and subsequent disciplinary meeting J concluded applicant sought to get B to withdraw report, although request not made explicitly, and threatened to come down hard on B by watching B’s hours. J relied on witness (“S”) to conclude applicant had raised voice and spoken to B in inappropriate way. Applicant dismissed. Applicant claimed dismissal unjustified for various reasons.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Authority ordered non-publication of applicant’s medical history. Although no meeting with applicant before applicant issued final written warning, applicant aware of respondent’s concerns, respondent took applicant’s explanation into account and applicant signed warning to acknowledge understood implications. No unjustified disadvantage. No evidence applicant dismissed for opening electrical cabinet contrary to instructions. Given respondent’s characterisation of applicant’s threat to curtail B’s hours as unwelcome behaviour towards another person, overbearing supervision and inappropriate behaviour towards a subordinate, applicant’s conduct capable of being treated as serious misconduct. Although initial letter setting out allegations did not contain specific reference to applicant watching B’s hours and using inappropriate tone, totality of documents provided to applicant made detailed allegations clear. Not clear what applicant apologised to B for but B still exercised by conversation with applicant and reasonable for J not to consider apology lessened effect of applicant’s actions to extent dismissal no longer justified. Reasonable for J to conclude applicant used inappropriate tone when speaking to B. While B’s allegation applicant acted in offensive, arrogant and intimidating manner too vague, respondent did not make finding with respect to it. Decision to dismiss not predetermined. Applicant not misled into believing dismissal not possible outcome by failure of respondent’s report to recommend penalty as applicant told in separate letter investigation could result in dismissal. Unusual for J as decision maker to be interviewed while report being prepared but no taint of process. Not much respondent could have done to prevent B speaking to fellow employees and nothing to suggest employees’ evidence tainted by knowledge of conversation between applicant and B. Respondent entitled to consider written warning given to applicant previously but failed to make clear to applicant warning relevant or give applicant opportunity to comment. J should have re-interviewed S to put to S applicant’s account of conversation overheard by S, especially as J relied on S’s account to justify finding of serious misconduct. J should have interviewed B given B declined to speak to employee responsible for producing report, fact applicant had raised complaint about being bullied by B suggesting B may have been biased against applicant, and fact applicant was dismissed on strength of written complaint by B. Respondent did not investigate applicant’s explanations fully. REMEDIES: 75 per cent contributory conduct. Respondent to pay applicant $4,726 reimbursement of lost wages. $2,500 compensation appropriate. |
| Result | Application granted (unjustified dismissal); Contributory conduct (75%); Reimbursement of lost wages ($4,726.83); Compensation for humiliation etc ($2,500); Application dismissed (unjustified disadvantage); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Electricity Regulations 1997;ERA s103A(3)(a);ERA s103A(3)(b);ERA s124;ERA s128;ERA s128(2);ERA s128(3) |
| Cases Cited | Sam’s Fukuyama Food Services Ltd v Zhang (2011) 9 NZELR 216;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315;Waitakere City Council v Ioane [2005] ERNZ 1043; [2006] 2 NZLR 310 |
| Number of Pages | 30 |
| PDF File Link: | 2012_NZERA_Christchurch_241.pdf [pdf 280 KB] |