| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 85 |
| Hearing date | 24 - 25 Jan 2013 |
| Determination date | 12 March 2013 |
| Member | A Dumbleton |
| Representation | W Reid ; S Hornsby-Geluk |
| Parties | Dumble v Airways Corporation of New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for breach of travel expenditure policy, bringing respondent into disrepute and breach of drug and alcohol policy – Authority found respondent’s assumptions about applicant’s awareness of use of purchase cards by other managers not reasonable – Found for very brief time in private place away from work, and before limited number of witnesses, applicant apparently under influence of alcohol, needed assistance with walking, was voluble and argumentative, and made rude gesture – Found respondent’s reputation, even as State-Owned Enterprise at forefront of aviation safety, could not reasonably be considered to have been damaged so seriously summary dismissal open to respondent – Found not reasonably open to respondent to conclude applicant at work function or participating in social occasion for respondent – Found no basis for respondent to reasonably determine applicant would have been unfit for work meeting later next morning – Dismissal unjustified – REMEDIES – Reinstatement ordered on specified condition – Found open to respondent to issue applicant with warning and require applicant to undertake assessment and counselling regarding alcohol misuse and dependency – Found significant contribution by applicant – 100 per cent contributory conduct – Manager |
| Abstract | Applicant employed by respondent as manager. Applicant claimed unjustifiably dismissed by respondent. Applicant spent evening with two managers on work trip. After consuming alcohol on night before work meeting, group went back to other manager’s hotel room. Other guests complained about disturbance in room, Police called and hotel complained to respondent. Respondent claimed applicant breached travel expenditure policy requiring most senior employee’s purchase card to be used for purchases when employees travelling in group. Respondent claimed expenditure should have been on applicant’s card as applicant most senior employee and reasonable to assume applicant aware other managers putting purchases on own purchase cards. Applicant denied knowledge of use of other managers’ purchase cards. Respondent claimed applicant’s actions brought respondent into disrepute. Applicant claimed Police observations of applicant being unsteady, ‘lippy’ and making rude gesture not investigated properly by respondent as being caused possibly by sleep inertia. Respondent claimed applicant breached drug and alcohol policy. Applicant dismissed. Applicant claimed disparity of treatment as other manager not dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent’s assumptions about applicant’s awareness of use of purchase cards by other managers not reasonable and basis of assumptions not explained to applicant. Could not reasonably be assumed applicant concerned with method of payment used by other managers during social occasion and, if applicant concerned, more likely applicant believed colleagues would comply with purchase card conditions. Respondent gave unreasonable preference to other manager’s account that could not have led respondent to reasonably conclude applicant aware manager had paid for alcohol with own purchase card. Applicant did not disturb hotel guests as fell asleep in colleague’s room. Respondent could reasonably conclude applicant’s conduct explained by being under influence of alcohol and waking suddenly in unfamiliar place. For very brief time in private place away from work, and before limited number of witnesses, applicant apparently under influence of alcohol, needed assistance with walking, was voluble and argumentative, and made rude gesture. Although reasonable and sufficient basis for concluding respondent brought into disrepute, respondent’s reputation even as State-Owned Enterprise at forefront of aviation safety could not reasonably be considered damaged so seriously summary dismissal open to respondent. Not reasonably open to respondent to conclude applicant at work function or participating in social occasion for respondent. No basis for respondent to reasonably determine applicant would have been unfit for work meeting later next morning. Respondent entitled to be concerned about amount of alcohol drunk by applicant and other managers but summary dismissal not open to fair and reasonable employer. No disparity of treatment making dismissal unjustified. Dismissal unjustified. REMEDIES: Compelling case for reinstatement given unique nature of employment with respondent and applicant’s otherwise long and successful career. Reinstatement ordered on specified condition. Open to respondent to issue applicant with warning and require applicant to undertake assessment and counselling regarding alcohol misuse and dependency. Leave reserved for parties to apply for further orders regarding applicant’s reinstatement to superannuation scheme. Significant contribution by applicant. 100 per cent contributory conduct. |
| Result | Application granted ; Reinstatement ordered ; Contributory conduct (100%) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s149 |
| Cases Cited | C v Air Nelson Ltd [2011] ERNZ 207;Craigie v Air New Zealand Ltd [2006] ERNZ 147;Hallwright v Forsyth Barr Ltd [2013] NZERA Auckland 79 |
| Number of Pages | 14 |
| PDF File Link: | 2013_NZERA_Auckland_85.pdf [pdf 248 KB] |