| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 417 |
| Hearing date | 12 Jun 2012 |
| Determination date | 26 November 2012 |
| Member | K J Anderson |
| Representation | F Wood ; K Sagaga |
| Location | Rotorua |
| Parties | Stewart v The Commissioner of Police |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant resigned voluntarily – Authority found serious findings adverse to applicant accepted by two senior officers of respondent without applicant having opportunity to rebut conclusions – Found concerted effort by inspector (“B”) to make applicant’s life difficult – Found B never provided any specific examples of reluctance to pass information to applicant’s work group or individuals expressing concern about applicant’s credibility – Found force in applicant’s submission B’s actions during meeting designed to force applicant to accept lesser position – Found applicant effectively informed no longer considered suitable for current position – Found some merit in applicant’s submission should not have been required to address performance issues soon after returning to work particularly given applicant being asked to address some issues leading to applicant taking sick leave – Found respondent’s actions amounted to breach of duty to treat applicant fairly and reasonably – Found foreseeable applicant would have little option but to resign – Found applicant constructively dismissed – Dismissal unjustified – REMEDIES – 25 per cent contributory conduct – $9,000 compensation appropriate – Intelligence support officer |
| Abstract | Applicant employed by respondent as intelligence support officer. Applicant claimed unjustifiably dismissed by respondent. Applicant informed to be investigated by officer (“L”) about inappropriate accessing of information on police database. L concluded applicant used police database for unauthorised purposes, divulged confidential information to individual (“G”) and lied about actions. Area commander supported L’s findings. At same time L also investigated complaint applicant used police computer system inappropriately. L concluded cause to question applicant’s honesty and integrity regarding explanations for internet access. Applicant informed disciplinary hearing to take place and received all information provided to person undertaking hearing. After applicant claimed L’s investigations flawed due to lack of proper disclosure of information, manager (“D”) reviewed files and parties agreed investigation reports to be withdrawn and new investigations undertaken. Following second investigation D concluded insufficient certainty applicant had divulged confidential information to G but reached same conclusions as L regarding applicant’s alleged inappropriate use of computer systems. D stated did not have concerns about applicant’s integrity and concluded applicant’s internet usage should be dealt with as performance issue rather than misconduct. After D realised would not be able to complete investigation reports before travelling overseas for extended period, D contacted applicant’s representative (“K”) to inform of D’s conclusions. While D on leave, inspector (“B”) asked applicant to attend meeting (“meeting”). B claimed issues about accuracy of data entry by applicant. Applicant claimed not aware issue would be raised at meeting, information entered in recent incident had been provided by senior detective and applicant had raised concerns previously with B. B claimed concerns expressed about applicant’s credibility and reluctance to pass information to applicant’s work group because of applicant’s involvement. B claimed informed applicant had concerns about applicant’s ability to carry out duties when accessing internet excessively for private purposes during work hours. B claimed told applicant new intelligence policy meant applicant may not have necessary higher security clearance to continue in current role. Applicant claimed told to accept vacant records clerk position. Applicant claimed subsequent letter from B threat applicant would be removed from role if did not accept records clerk position as would not have necessary security clearance. Applicant placed on sick leave for month due to work related stress. B claimed told K subsequently meeting was informal performance discussion not intended to force applicant out of current role. After applicant’s return to work, applicant claimed invitation to performance meeting attempt by B to intimidate applicant. Applicant resigned. Applicant claimed constructively dismissed. Applicant claimed investigations into unauthorised access of information and inappropriate use of police computer system flawed and changed respondent’s attitude to applicant irreparably. Applicant claimed respondent attempted to force applicant out of position and applicant subjected to prolonged and sustained period of harassment and bullying. D had not completed investigation reports at time of applicant’s resignation.;AUTHORITY FOUND –;UNJUSTIED DISMISSAL: L’s findings accepted by two senior officers of respondent who recorded applicant could not be trusted, was a liar and not suitable to remain in current role, and applicant not given opportunity to rebut serious conclusions. While applicant not targeted unfairly because of earlier investigation into applicant’s alleged inappropriate use of police computer system, applicant not spoken to previously about internet usage and no general instruction to staff reminding them of reasonable use policy. Concerted effort by B to make applicant’s life difficult. Probable that applicant’s concerns about data entry raised with B and applicant’s explanation about incident not listened to. B never provided any specific examples of reluctance to pass information to applicant’s work group or individuals expressing concern about applicant’s credibility. Force in applicant’s submission B’s actions during meeting designed to force applicant to accept lesser position. Applicant effectively informed no longer considered suitable for current position. Meeting not informal and fact B sought to clarify matters with K subsequently not relevant as applicant already affected to such extent on sick leave. Some merit in applicant’s submission should not have been required to address performance issues soon after returning to work particularly given applicant being asked to address some issues leading to applicant taking sick leave, K had raised concerns about way applicant treated and applicant never presented with specific details of matters of concern. Respondent’s actions amounted to breach of duty to treat applicant fairly and reasonably. Foreseeable applicant would have little option but to resign. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: 25 per cent contributory conduct. $9,000 compensation appropriate. |
| Result | Application granted; Contributory conduct (25%); Compensation for humiliation etc ($9,000); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s128(2);Independent Police Conduct Authority Act 1988 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/as Medismart Ltd) (2009) 6 NZELR 530;Auckland Electric Power Board v Auckland Provincial Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168; [1994] 2 NZLR 415;Radius Residential Care Ltd v McLeay [2010] ERNZ 371 |
| Number of Pages | 30 |
| PDF File Link: | 2012_NZERA_Auckland_417.pdf [pdf 399 KB] |