| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 9 |
| Hearing date | 31 Oct 2012 |
| Determination date | 28 January 2013 |
| Member | G J Wood |
| Representation | A Maelzer ; J Dobson |
| Location | Wellington |
| Parties | Alatipi v Chief Executive of Department of Corrections |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for assaulting prisoner (“X”) – Applicant denied assaulting X – Authority found respondent’s failure to interview other corrections officer no more than minor failure not resulting in applicant being treated substantively unfairly – Found respondent did not fail to take account of relevant material – Found respondent’s actions over exercise of applicant’s right to silence wrong but actions remedied by applicant being interviewed after Police decided to take no further action – Found respondent not required to allow applicant to respond to final interview with corrections officer about colour of X’s bruising – Found not unfair for respondent to consider previous instances of inappropriate behaviour by applicant – Found open to respondent to reject possibility X’s injuries self-inflicted as unlikely and open to fair and reasonable employer to conclude applicant assaulted X – Dismissal justified – Corrections officer |
| Abstract | Applicant employed by respondent as corrections officer. Applicant claimed unjustifiably dismissed by respondent. Verbal altercation took place after applicant denied prisoner’s (“X”) request to make telephone call and X returned to cell. X claimed assaulted by applicant in cell. Applicant denied assaulting X. Applicant sent to check on X and stated no problems. Prison nurse subsequently conducted medical round with corrections officers, including other officer on duty (“Y”) and officer (“Z”). X told Z had been assaulted by corrections officer. Z raised concerns X had been assaulted and stated facial injuries visible. X taken to medical unit and said again had been assaulted. Assistant regional manager (“H”) requested manager (“W”) investigate allegation. Applicant suspended. Applicant declined to answer questions in relation to allegation until outcome of Police investigation known but W decided to continue investigation. W did not interview Y. W provided report to H who sought applicant’s comments. Applicant’s union stated applicant exercising right to silence while Police investigation in progress but willing to speak to W once applicant in possession of Police report and informed whether criminal proceedings to be commenced. No criminal charges laid against applicant. At subsequent meeting applicant claimed had been racially abused by X, had told X was over issues of that morning and shaken X’s hand, and never saw any injuries on X when applicant returned to X’s cell after assault allegations. At end of meeting applicant offered to provide Police report to respondent. In responding to W’s report union noted Z’s observations could lead to conclusion X’s injuries not fresh. H concluded no evidence X’s bruising not fresh and allegation of assault proven. At subsequent meeting applicant noted Y had told Police had not noticed anything wrong with X. H conducted further interview with Z who stated X’s face swollen and red at time and Z did not know why told Police X’s injuries yellow. Applicant dismissed. H stated had considered previous instances of inappropriate behaviour by applicant.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of name or details identifying X. W should have interviewed Y to ascertain conclusively Y not in vicinity of events in question and did not notice anything during medical rounds. Unsafe to find Y had evidence relevant to applicant’s demeanour on day and other members of medical team did not observe X’s injuries. Respondent had sufficient information to make conclusions about applicant. Failure to interview Y no more than minor failure not resulting in applicant being treated substantively unfairly. Respondent should have made more effort to obtain Police investigation documentation but more likely responsibility for providing information lay primarily with applicant. Respondent did not fail to take account of relevant material. Respondent’s actions over exercise of applicant’s right to silence wrong but actions remedied by applicant being interviewed after Police decided to take no further action. H considered applicant’s explanation and possibility X’s injuries self-inflicted. Respondent not required to allow applicant to respond to final interview with Z about colour of X’s bruising. Not unfair for respondent to consider previous instances of inappropriate behaviour by applicant. Open to respondent to reject possibility X’s injuries self-inflicted as unlikely. Unsurprising X’s account not completely consistent from one interview to the next and respondent entitled to view racial abuse of applicant by X as motive for alleged assault. Not for Authority to determine whether applicant assaulted X but open to fair and reasonable employer to conclude applicant assaulted X. Dismissal justified. |
| Result | Application dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(4);ERA s103A(5) |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40;Faapito v Chief Executive of the Department of Corrections [2012] NZEmpC 206 |
| Number of Pages | 15 |
| PDF File Link: | 2013_NZERA_Wellington_9.pdf [pdf 215 KB] |