| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 412 |
| Hearing date | 14 Nov 2012 |
| Determination date | 19 November 2012 |
| Member | A Fitzgibbon |
| Representation | S Mitchell ; K Dunn |
| Location | Auckland |
| Parties | Belsham v Ports of Auckland Ltd |
| Summary | INJUNCTION – Applicant sought interim reinstatement – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for refusing a lawful instruction – Authority found whether applicant instructed to ‘man up the straddle’ at issue between parties – Found arguable applicant did not flout terms of employment agreement deliberately – Found clearly arguable applicant’s conduct not such as to deeply impair or be destructive of confidence or trust essential to employment relationship – Found clearly arguable applicant unjustifiably dismissed – Found applicant had arguable case for reinstatement, although not strongly arguable – Found balance of convenience favoured applicant – Found no compelling reasons why applicant should not be reinstated in interim – Application for interim reinstatement granted – Stevedore |
| Abstract | Applicant employed by respondent as stevedore. Applicant sought interim reinstatement. Applicant claimed unjustifiably dismissed by respondent. Applicant asked by manager (“K”) to drive straddle but refused to do so until after discussion with senior manager (“M”). Respondent claimed difficulties delivering letter commencing disciplinary process to applicant because applicant refused to accept letter. Applicant claimed did not drive straddle because of health and safety concerns. Applicant claimed had been re-rostered as straddle driver instead of ship foreman because respondent decided not to follow proper procedures with regard to dangerous goods. Applicant claimed K did not instruct applicant to drive straddle but asked applicant to ‘man the straddle’ and suggested applicant could discuss matter with M when M arrived. After disciplinary process applicant dismissed. Respondent claimed applicant failed to follow lawful and reasonable instruction and such failure constituted serious misconduct. Respondent claimed applicant’s refusal to drive straddle motivated by not being allocated to ship foreman role rather than health and safety concerns. Respondent claimed reinstatement not practicable and reasonable as applicant’s actions caused irreparable harm to employment relationship and respondent relied on four warnings issued to applicant over years for similar instances of misconduct.;AUTHORITY FOUND –;INJUNCTION: Whether applicant instructed to ‘man up the straddle’ at issue between parties. Applicant informed K had health and safety concerns and wished to discuss concerns with M. Even if applicant received and refused instruction, fact applicant drove straddle after discussion with M meant arguable applicant did not flout terms of employment agreement deliberately. Clearly arguable applicant’s conduct not such as to deeply impair or be destructive of confidence or trust essential to employment relationship. Clearly arguable applicant unjustifiably dismissed. No warnings relied on by respondent related to refusal by applicant to carry out particular work. Three warnings issued more than three years ago and more recent warning arose out of acrimonious industrial environment. Applicant’s conduct during disciplinary process supported respondent’s concerns applicant difficult to manage and demonstrated applicant’s lack of insight into seriousness with which applicant’s conduct viewed by respondent. Applicant had arguable case for reinstatement, although not strongly arguable. Applicant would suffer financially if not granted interim reinstatement, be unlikely to find alternative work and, while applicant could be returned to pre-dismissal financial position, damages not sufficient compensation for loss of job. Balance of convenience favoured applicant. No compelling reasons why applicant should not be reinstated in interim. Application for interim reinstatement granted. |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA;ERA s3;ERA s3(a)(ii);ERA s103A;ERA s103A(2);ERA s125(2);ERA s127;ERA s127(1);ERA s127(4) |
| Cases Cited | Butcher v OCS Ltd [2008] ERNZ 367;McKean v Ports of Auckland Ltd (2011) 9 NZELR 24;Sky Network Television Ltd v Duncan [1998] 3 ERNZ 917 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_412.pdf [pdf 262 KB] |