| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 455 |
| Hearing date | 4 Dec 2012 |
| Determination date | 13 December 2012 |
| Member | R Larmer |
| Representation | P O'Sullivan ; R Towner, S Maxfield |
| Location | Hamilton |
| Parties | Tupou v Waikato Milking Systems NZ Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant not demoted – Found number of pornographic websites accessed from respondent’s computer mainly used by applicant - Found respondent not obliged to consult with applicant before moving applicant to different area in workplace to limit applicant’s access to computer – Found number of pornographic websites accessed shortly after all other employees apart from applicant had left workplace – Found if respondent believed had been poorly treated by respondent had opportunities to first raise concerns with respondent before resignation – Found on balance of probabilities applicant resigned as confronted by respondent about accessing pornographic websites on respondent’s computer – Found applicant not constructively dismissed - No dismissal - Warehouse Stores Person |
| Abstract | Applicant employed by respondent as warehouse stores person. Applicant claimed unjustifiably dismissed by respondent. Applicant claimed told by respondent’s supervisor (“J”) would be demoted due to number of sick days applicant had taken off work. Respondent denied applicant had been demoted and claimed had taken steps to limit applicant’s access to respondent’s computer applicant had been using to access pornography. Respondent claimed applicant resigned as investigation underway into applicant’s alleged viewing of pornographic material on respondent’s computer. Applicant denied had accessed pornographic websites on computer. Respondent told applicant another employee (“X”) would be put in charge of exports area where applicant previously worked. Applicant claimed previous position was as export storeman and employed to work solely in export area of workplace. Applicant claimed should have been consulted before moved to different area of workplace. Respondent’s management claimed applicant’s resignation sudden and unexpected and attempted to convince applicant not to resign. Witness (“A”) observed applicant deleting many pornographic website addresses from respondent’s computer. Applicant claimed constructively dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of name and details relating to A. Applicant not demoted. J told applicant would be moved to different area in workplace due to concern about applicant’s access to computer but J would tell respondent’s management applicant had been moved as applicant’s absences meant applicant unreliable employee in previous workplace area. Applicant did not have contractual right to access computer so limiting applicant’s access did not amount to demotion. Applicant’s pay, reporting lines, hours and duties remained unchanged. Promotion of X did not mean applicant had been demoted. Applicant not employed as export storeman and did not have contractual right to work solely in export area. Respondent not obliged to consult with applicant before applicant moved to another workplace area. Even if respondent had duty to consult with applicant, applicant did not inform respondent had resigned due to respondent’s failure to consult. Respondent’s management concerned by applicant’s resignation and offered applicant alternative positions in attempt to retain applicant. Number of pornographic websites accessed from computer mainly used by applicant. Number of pornographic websites accessed shortly after all other employees apart from applicant had left workplace. If applicant believed had been poorly treated by respondent had opportunities to first raise concerns with respondent. On balance of probabilities applicant resigned as confronted by respondent about accessing pornographic websites on respondent’s computer. Applicant not constructively dismissed. No dismissal. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA Second Schedule cl10 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Auckland_455.pdf [pdf 184 KB] |