| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 264 |
| Hearing date | 27 Apr 2012 - 25 Jun 2012 (2 days) |
| Determination date | 03 December 2012 |
| Member | H Doyle |
| Representation | J Lawrie ; K Dunn, A Smith |
| Location | Christchurch |
| Parties | X v Oceania Group (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed after being convicted of offence that could reflect or impact negatively upon respondent – Authority found fact applicant told respondent about background of charge faced by applicant did not prevent respondent relying on clause in code of conduct when applicant subsequently convicted – Found having employee convicted of arson when employee in sole charge of elderly residents at night could reflect or impact negatively on respondent – Found fair and reasonable employer would find breach of code of conduct serious misconduct – Found process unfair as applicant unaware of specific allegation of misconduct applicant required to answer – Found despite procedural unfairness fair and reasonable employer would have concluded employment relationship could not continue and applicant’s contribution so significant not appropriate to make finding of unjustified dismissal – Dismissal justified – Nurse |
| Abstract | Applicant employed by respondent as nurse. Applicant claimed unjustifiably dismissed by respondent. Applicant charged with arson. Applicant applied for position at respondent and informed facilities manager (“P”) of background to incident and fact applicant facing charge. Two months after commencing employment applicant pleaded guilty to charge and convicted of arson. Two months later applicant sentenced to eight months home detention and next day informed respondent would not be at work for rest of week due to being on home detention. Applicant attended two disciplinary meetings. Applicant dismissed. Respondent claimed applicant breached code of conduct provision by receiving conviction whilst in employment of respondent for criminal offence which could reflect or impact negatively upon respondent. Respondent claimed could not trust convicted arsonist working with residents on night shift and applicant could make bad choices under pressure. Applicant claimed code of conduct required conviction to have ramifications for employment relationship. Applicant claimed gave full account of actions before commenced employment and no causal connection between conduct giving rise to conviction and any negative impact on respondent.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of applicant’s name or information that may lead to identification of applicant. Fact applicant told P about background of charge faced by applicant did not prevent respondent relying on clause in code of conduct when applicant subsequently convicted of charge. Having employee convicted of arson when employee in sole charge of elderly residents at night could reflect or impact negatively on respondent. Fair and reasonable employer would find breach of code of conduct serious misconduct. While applicant excellent nurse and extenuating circumstances around offence, fair and reasonable employer would find loss of trust and confidence going to heart of employment relationship as applicant failed to disclose conviction and did not advise of sentencing date. Not satisfied any clear allegation about breach of code of conduct or concerns about applicant’s mental state or ability to act under pressure put to applicant during first disciplinary meeting. More likely than not clause in code of conduct referred to in second disciplinary meeting but not satisfied applicant had opportunity to respond to it properly. Likely some discussion during second disciplinary meeting about ability for applicant to make clear decisions under pressure. Process unfair as applicant unaware of specific allegation of misconduct applicant required to answer. Despite procedural unfairness fair and reasonable employer would have concluded employment relationship could not continue and applicant’s contribution so significant not appropriate to make finding of unjustified dismissal. Dismissal justified. |
| Result | Application dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s103A;ERA Second Schedule cl10;ERA Second Schedule cl10(1) |
| Cases Cited | Kaipara v Carter Holt Harvey Ltd [2012] NZEmpC 40 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Christchurch_264.pdf [pdf 237 KB] |