| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 457 |
| Hearing date | 30 Oct 2012 |
| Determination date | 14 December 2012 |
| Member | E Robinson |
| Representation | S Mitchell ; K Burson |
| Location | Auckland |
| Parties | Nee Nee and Anor v C3 Ltd |
| Other Parties | Nathan |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicants claimed unjustifiably dismissed by respondent – Respondent claimed applicants justifiably dismissed for breaching liquor ban on respondent’s premises – Authority found substantive justification for respondent’s conclusion applicants’ actions serious misconduct in circumstances where respondent implemented liquor ban following serious assault on employee after consumption of alcohol on respondent’s premises and applicants consumed alcohol aware liquor ban in place – Found respondent conducted comprehensive investigation prior to disciplinary meetings, applicants given opportunity to respond to allegations and respondent considered responses provided – Found applicants attempted to mislead respondent and did not admit culpability until final disciplinary meeting – Found applicants aware of liquor ban and reason for ban, were senior employees, union delegates and health and safety representatives and reasonable for respondent to expect applicants would not only obey liquor ban but encourage other employees to do so as well, rather than participate actively in provision of alcohol – Dismissals justified – Stevedores |
| Abstract | Applicants employed by respondent as stevedores. Applicants claimed unjustifiably dismissed by respondent. Respondent instituted liquor ban on respondent’s premises after serious assault on employee following consumption of alcohol on respondent’s premises. Ban communicated by signage and text messages and communicated to respondent’s health and safety committee of which applicants members. Four months later manager (“N”) informed of possible consumption of alcohol on respondent’s premises. N discovered number of empty alcohol containers in rubbish bins and asked general manager (“P”) to investigate. One employee acknowledged group consumed alcohol and named employees present, including applicants. P claimed told by second applicant instructed employees to move off respondent’s premises, may have had a beer with group but did not consume alcohol on respondent’s premises, and left before others. P claimed told by second applicant first applicant not present. P claimed other employees stated applicants drinking with group and one employee stated first applicant had bought alcohol. P claimed first applicant stated had seen alcohol in fridge, assumed was for ‘shout’ and let other employees know alcohol was there. First applicant claimed drank ginger beer only and denied bought any alcohol. P made further inquiries, including seeking details from other company about ‘shout’ first applicant referred to and visiting local supermarket to look for ginger beer bottles. P concluded first applicant invited employees to drink alcohol on respondent’s premises and employees, including applicants, drank large quantity of alcohol over several hours. At disciplinary meeting first applicant maintained drank ginger beer only and claimed believed liquor ban temporary. Respondent did not accept first applicant could have considered liquor ban temporary and concluded first applicant drinking on respondent’s premises. Second applicant also claimed had been drinking ginger beer only and tried to get other employees to leave respondent’s premises, although “highly probable” second applicant had beer in attempt to get other employees to leave. Respondent considered highly probable second applicant consumed alcohol on respondent’s premises and did not really insist on getting other employees to stop drinking or leave respondent’s premises. Applicants informed respondent proposing dismissal. Applicants’ union requested respondent postpone decision and during subsequent meeting union made number of suggestions for resolving situation without dismissing applicants. At subsequent meetings applicants read prepared statements including admissions applicants consumed alcohol. Respondent claimed applicants broke trust by breaching liquor ban knowingly, trying to mislead respondent about events and minimising applicants’ part in events. Respondent did not consider alternatives short of dismissal appropriate. Applicants dismissed. Applicants claimed discriminated against because union delegates and health and safety representatives. Applicants claimed other employees involved in incident not dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: No valid justification given for first applicant’s belief liquor ban temporary and no evidence liquor ban not enforced by respondent. Substantive justification for respondent’s conclusion applicants’ actions serious misconduct in circumstances where respondent implemented liquor ban following serious assault on employee after consumption of alcohol on respondent’s premises and applicants consumed alcohol aware liquor ban in place. P conducted comprehensive investigation prior to disciplinary meetings, applicants given opportunity to respond to allegations and respondent considered responses provided. Respondent agreed to postpone final decision at request of applicants’ union and applicants given opportunity to make further submissions on proposed outcomes. Unlike other employees involved in incident, applicants attempted to mislead respondent and did not admit culpability until final disciplinary meeting. Applicants aware of liquor ban and reason for ban, were senior permanent employees, union delegates and health and safety representatives and reasonable for respondent to expect applicants would not only obey liquor ban but encourage other employees to do so as well, rather than participate actively in provision of alcohol. Grounds for holding respondent had lost trust and confidence in applicants. Applicants not discriminated against because union members and applicants’ standing as health and safety representatives relevant factor to be considered by respondent. Adequate reason for disparity of treatment with other employees as respondent should have been able to rely on applicants as health and safety representatives to uphold liquor ban and applicants lied about involvement with incident. Dismissals justified. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s104 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40;Arthur D Riley & Co Ltd v Wood [2008] ERNZ 462;Chief Executive of the Department of Inland Revenue v Buchanan (No 2) [2005] ERNZ 767;Samu v Air New Zealand Ltd [1995] 1 ERNZ 636 |
| Number of Pages | 22 |
| PDF File Link: | 2012_NZERA_Auckland_457.pdf [pdf 258 KB] |