| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 79 |
| Hearing date | 18 - 19 Dec 2012 |
| Determination date | 05 March 2013 |
| Member | R A Monaghan |
| Representation | K Beck, C Morrison ; P Churchman |
| Parties | Hallwright v Forsyth Barr Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for out of work conduct bringing respondent into disrepute and engaging in activity likely to compromise applicant’s duties – Authority found while respondent did not provide evidence of actual damage to reputation, no flaw in procedure as case did not turn on whether evidence of negative feedback – Found evidence given by staff at investigation meeting not relied on to support decision to dismiss and lack of detail in generalised statement given to applicant during disciplinary process minor flaw – Found even if media coverage included inaccuracy and overstatement serious incident underlying applicant’s criminal conviction occurred, media attention to be expected and industry in which applicant worked meant media attention extended to respondent – Found clear respondent did not adopt view of applicant’s conduct suggested by early media accounts – Found fair and reasonable employer could conclude applicant’s actions brought respondent into disrepute – Found while applicant able to carry out financial and strategic analysis to expected standard, duties carried out at senior level in circumstances where applicant’s own reputation, integrity and behaviour relevant to overall perceptions of way respondent conducted business – Found fair and reasonable employer could conclude applicant’s ability to carry out duties compromised – Dismissal justified – Senior investment analyst |
| Abstract | Applicant employed by respondent as senior investment analyst. Applicant claimed unjustifiably dismissed by respondent. Applicant faced criminal charge following incident with other motorist outside work hours. Parties’ names publicised and extensive media coverage followed. Respondent’s general-manager (“P”) chose to regard applicant as innocent until proven guilty. Nineteen months later applicant convicted of causing grievous bodily harm with reckless disregard. Respondent initiated disciplinary process alleging applicant’s conduct brought respondent into disrepute and applicant engaged in activity likely to compromise applicant’s duties. Respondent’s preliminary decision claimed extensive media coverage of incident associating applicant with respondent, feedback from staff and clients indicated many people disturbed by applicant’s actions, integral part of applicant’s job to make public statements and provide commentary to media and importance of integrity and probity of senior employees meant applicant’s conduct brought respondent into disrepute. While respondent accepted applicant’s technical ability to carry out duties not affected, preliminary decision claimed aspects of applicant’s role including media profile compromised. Applicant claimed incident occurred outside work, no indication respondent brought into disrepute, media coverage not balanced and details of feedback from staff and clients not provided. Applicant claimed carried out normal duties since incident and media activities not significant part of job. Respondent agreed to postpone decision until applicant sentenced. After sentencing, applicant highlighted sentencing Judge’s comments dismissal unfair, criticisms of media coverage and comments relevant to low level of culpability. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: P’s decision to regard applicant as innocent until proven guilty did not detract from potentially serious implications of matter for applicant’s continued employment. P should arguably have warned applicant could be dismissed if convicted but breach of any such obligation minor. While respondent did not provide applicant evidence of actual damage to reputation, no flaw in procedure as case did not turn on whether evidence of negative feedback. Evidence given by staff at investigation meeting not relied on to support decision to dismiss and lack of detail in generalised statement given to applicant during disciplinary process minor flaw. Respondent put principal concerns to applicant and gave applicant opportunity to answer concerns. P considered applicant’s information regarding media coverage genuinely but saw matters differently. Evidence of damage to respondent’s business not required to justify dismissal. Even if media coverage included inaccuracy and overstatement, more accurate versions of facts became available and serious incident underlying applicant’s criminal conviction occurred, media attention to be expected and industry in which applicant worked meant media attention extended to respondent. Existence of underlying conduct meant could not be said media attention, rather than conduct itself, caused any damage to respondent’s reputation. Clear P did not adopt view of applicant’s conduct suggested by early media accounts. Fair and reasonable employer could conclude applicant’s actions brought respondent into disrepute. Reliance on businesses to provide goods or services in accordance with necessary or expected standards of service and perceptions of employees’ integrity and behaviour, especially of senior employees in positions of trust, closely related to perceptions of whether business met those standards. While applicant able to carry out financial and strategic analysis to expected standard, duties carried out at senior level in circumstances where applicant’s own reputation, integrity and behaviour relevant to overall perceptions of way respondent conducted business. Applicant’s conduct tainted position overall and fair and reasonable employer could conclude applicant’s ability to carry out duties compromised. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELR 40;R v Hallwright unreported, Judge Neave, 30 August 2012, DC Auckland CRI-2010-004-17554;Russell v Wanganui City College [1998] 3 ERNZ 1076;Russell v Wanganui City College [1999] 1 ERNZ 654;Smith v Christchurch Press Co Ltd [2000] 1 ERNZ 624 ; [2001] 1 NZLR 407;Sotheran v Ansett New Zealand Ltd [1999] 1 ERNZ 548 |
| Number of Pages | 14 |
| PDF File Link: | 2013_NZERA_Auckland_79.pdf [pdf 237 KB] |