| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 108 |
| Hearing date | 18 Mar 2013 |
| Determination date | 28 March 2013 |
| Member | A Dumbleton |
| Representation | P Wicks ; D France |
| Parties | Hyland v Air New Zealand Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by respondent issuing applicant final warning and requiring applicant to attend anger management training - Authority found applicant resumed duties during investigation and no suggestion of untoward conduct during investigation – Found respondent’s ten month delay in concluding investigation unfair and unreasonable having element of unintended punishment and could impact applicant’s performance in safety sensitive environment – Found concluding investigation with imposition of final warning after ten month delay not what fair and reasonable employer could have done in all circumstances at time warning delivered – Applicant unjustifiably disadvantaged by respondent’s issue of final warning and requirement to attend anger management training - REMEDIES - 100 per cent contributory conduct - Flight Attendant |
| Abstract | Applicant employed by respondent as flight attendant. Applicant claimed unjustifiably disadvantaged by respondent issuing applicant final warning and requiring applicant to attend anger management training. Applicant asleep during break while working long haul flight. Colleague (“C”) woke applicant at end of break using physical contact. Applicant claimed C’s actions caused physical hurt or discomfort. Applicant verbally remonstrated with C and demonstrated effect of physical contact by shaking C’s arm. Flight Services Manager (“F”) called meeting between applicant and C during flight with Inflight Services Co-ordinator (“ISC”) as witness. F’s incident report showed F considered problem between applicant and C resolved at meeting and applicant apologised to C at meeting for actions. Manager who received F’s report considered matter serious. Investigation undertaken over ten months. In final investigation report respondent claimed applicant’s version of events not credible and applicant breached Code of Conduct, Cabin Crew Procedures Manual and Workplace Bullying Policy. Respondent claimed applicant’s actions amounted to serious misconduct and applicant approached C in aggressive manner using inappropriate physical contact. Respondent conceded applicant offered written apology to C, acknowledged should not have touched C and undertook not to repeat actions. Respondent issued applicant written warning. Respondent instructed applicant to attend anger management training. Respondent claimed applicant’s subsequent written apology to C not genuine. Applicant claimed subjected to long investigation and conduct of investigation flawed. Applicant claimed respondent’s findings did not disclose serious misconduct, respondent’s findings did not justify respondent’s final written warning to applicant and respondent not justified in requiring applicant attend anger management training.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: Applicant resumed duties during investigation and no suggestion of untoward conduct during this time. Respondent’s ten month delay in concluding investigation unfair and unreasonable having element of unintended punishment and could impact applicant’s performance in safety sensitive environment. Applicant long serving employee of respondent with largely unblemished record. Flaw in investigation process as ISC not asked for statement although witnessed events in meeting between applicant, C and F following incident and allegations about applicant’s behaviour during meeting serious enough to warrant corroboration. Concluding investigation with imposition of final warning after ten month delay not what fair and reasonable employer could have done in all circumstances at time warning delivered. To be effective anger management training should have been required earlier especially as applicant continued duties. Applicant unjustifiably disadvantaged by final warning and respondent’s requirement applicant attend anger management training. Applicant to sign apology letter to be passed to C. Respondent to remove final warning from applicant’s record and withdraw instruction for applicant to attend anger management training. REMEDIES: 100 per cent contributory conduct. |
| Result | Application granted ; Orders made ; Contributory conduct (100%) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103A;ERA s103A(3) |
| Number of Pages | 11 |
| PDF File Link: | 2013_NZERA_Auckland_108.pdf [pdf 191 KB] |