| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 39 |
| Hearing date | 29 Jan 2013 |
| Determination date | 26 March 2013 |
| Member | G J Wood |
| Representation | M Fennesy ; A Gallagher |
| Location | Palmerston North |
| Parties | Murrell v City Fitness Group Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent placing applicant on special leave and later suspending applicant – Authority found respondent’s action in placing applicant on special leave not predetermined - Found fair and reasonable employer would have been concerned about reputation and risk regarding applicant’s criminal charges and both parties gained benefit from special leave – Found no unjustified disadvantage to applicant in being placed on special leave - Found applicant had duty to be communicative to respondent and respondent entitled at minimum to know progress of trial – Found publicity could have negatively impacted on respondent – Found respondent had sufficient grounds for continuing applicant’s suspension while respondent investigated matters – No unjustified disadvantage – Floor Consultant/Personal Trainer |
| Abstract | Applicant employed by respondent as floor consultant/personal trainer. Applicant claimed unjustifiably disadvantaged by respondent placing applicant on special leave prior to disciplinary meeting and suspending applicant during disciplinary process. Respondent informed that applicant facing serious criminal charges. Respondent prepared letter expressing concern applicant had not disclosed serious criminal charges and claimed public nature of criminal proceedings could bring respondent into disrepute and concerned about health and safety. Respondent met with applicant next day. Applicant denied faced serious criminal charges and respondent apologised if information wrong. Applicant subsequently admitted faced charges which intended to defend. Applicant claimed could continue work. Respondent claimed special leave benefited applicant as provided time for applicant to prepare for disciplinary meeting and gave respondent time to consider matters and business reputation. Respondent handed applicant letter prepared previous day and placed applicant on special leave pending disciplinary meeting. At meeting applicant claimed no obligation to inform respondent about charges as did not involve respondent, no publicity and no reason to connect charges with respondent. Applicant claimed respondent’s health and safety obligations to applicant not being met by applicant’s suspension. Applicant suspended for full period of disciplinary investigation. Applicant found not guilty of charges at issue.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Employer placing employee on special leave against employee’s wishes constituted suspension. Respondent’s action in placing applicant on special leave not predetermined as applicant would not have been placed on special leave if respondent satisfied applicant not facing serious criminal charges. Fair and reasonable employer would have been concerned about reputation and risk regarding applicant’s criminal charges and both parties gained benefit from special leave. No unjustifiable action in respondent not telling applicant how knowledge of charges gained as not relevant to applicant’s employment. Given short period of time applicant on special leave alternative to suspension would not have been as useful to both parties. No unjustified disadvantage to applicant in being placed on special leave. Applicant had duty to be communicative to respondent and respondent entitled at minimum to know progress of trial. Publicity could have negatively impacted on respondent. Respondent had sufficient grounds for continuing applicant’s suspension while respondent investigated matters. No unjustified disadvantage. Leave reserved to address issue of agreed payment for respondent’s failure to pay applicant during period of suspension. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Faapito v Chief Executive of the Department of Corrections [2012] NZEmpC 206;Murrell v City Fitness Group Ltd [2012] NZERA Wellington 127;Singh v Sherildee Holdings Ltd t/a New World Opotiki unreported, Couch J, 22 Sep 2005, AC 53/05 |
| Number of Pages | 8 |
| PDF File Link: | 2013_NZERA_Wellington_39.pdf [pdf 175 KB] |