| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 3 |
| Hearing date | 19 Dec 2012 |
| Determination date | 14 January 2013 |
| Member | M Ryan |
| Representation | A Millar ; E Burke |
| Location | Palmerston North |
| Parties | Kardailsky v Agresearch Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for intentionally allowing genetically modified plants to flower without required controls – Authority found reasonable for respondent to conclude applicant had not contained flowering material in accordance with operating manual standards and practices – Found reasonable for respondent to conclude applicant intended to allow plants to flower without use of controls – Found respondent raised sufficiently detailed concerns with applicant and provided sufficient information to allow applicant to respond – Found applicant’s comments at final meeting focused on respondent’s process and applicant chose not to respond to substance of respondent’s findings – Dismissal justified – Scientist |
| Abstract | Applicant employed by respondent as scientist. Applicant claimed unjustifiably dismissed by respondent. While applicant on annual leave respondent’s facility officer (“S”) e-mailed applicant listing genetically modified plants registered to applicant needing to be cut back or bagged to prevent spread of pollen. S removed flowers after applicant did not respond to further e-mail requesting permission to do so. Applicant claimed no risk of pollen escaping if plants flowered and bagging plants ineffective and would have hindered applicant’s experiment. S reported incident to manager (“C”) and disciplinary investigation commenced. Applicant informed of allegation regulations and controls associated with experiment breached and applicant’s actions appeared to be deliberate. At meeting with investigators applicant claimed research required observation of entire flowering process and applicant intended to allow plants to flower for few days but not release pollen. Applicant claimed contradiction between various documents and one document did not specifically prohibit flowering of plants. Respondent made further inquiries of other researchers who advised understood clearly plants to be bagged or cut when flowering commenced. Report sent to research director (“M”) concluded applicant did not contain flowering plants, had no intention of bagging plants, chose to disregard controls on flowering and responses showed unacceptable lack of understanding of regulations given on-going training offered to applicant. At subsequent meeting applicant provided with opportunity to comment on report. Applicant dismissed. Applicant claimed S’s notification of incident to C motivated by difficulties in working relationship with applicant. Applicant claimed events in question occurred while applicant on annual leave and respondent aware no technician allocated to monitor experiment. Applicant claimed not provided with investigators’ report until day applicant required to attend meeting to discuss report.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Reasonable for respondent to conclude applicant had not contained flowering material in accordance with operating manual standards and practices. Applicant’s statements meant reasonable for respondent to conclude applicant intended to allow plants to flower without use of controls. S responsible for reporting instances of non-compliance with containment regulations and concerns not raised because of professional difficulties between applicant and S. Applicant aware of expected practice to make arrangements with colleagues prior to taking leave to ensure monitoring and compliance of research. While copies of e-mail correspondence between applicant and colleagues should have been provided to applicant prior to first meeting, applicant aware of specific concerns and able to respond. Respondent raised sufficiently detailed concerns with applicant and provided sufficient information to allow applicant to respond. Applicant received copy of investigators’ report two days before final meeting. Applicant’s comments at final meeting focused on respondent’s process and applicant chose not to respond to substance of respondent’s findings. Discussion of sanctions other than dismissal inappropriate as respondent had lost trust in applicant to comply with controls given applicant’s lack of engagement with substance of respondent’s findings. Dismissal justified. |
| Result | Application dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Animal Welfare Act 1999;Biosecurity Act 1993;ERA;ERA s4(1A)(c)(i);ERA s103A(2);ERA s103A(3);Hazardous Substances and New Organisms Act 1996;Hazardous Substances and New Organisms (Low-Risk Genetic Modification) Regulations 1998 |
| Cases Cited | X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 15 |
| PDF File Link: | 2013_NZERA_Wellington_3.pdf [pdf 324 KB] |