| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 136 |
| Hearing date | 11 Mar 2013 |
| Determination date | 19 April 2013 |
| Member | A Fitzgibbon |
| Representation | S Mitchell ; R McIlraith, K Dunn |
| Parties | Belsham v Ports of Auckland Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent – Authority found applicant twice given reasonable instruction by respondent to drive straddle crane – Found refusal to carry out work instructions serious misconduct under collective employment agreement - Found respondent had reasonable basis to conclude applicant refused to drive straddle crane as disputed allocated role rather than dangerous goods concerns – Summary dismissal within range of responses open to fair and reasonable employer - Dismissal justified – Stevedore |
| Abstract | Applicant employed by respondent as a stevedore. Applicant claimed unjustifiably dismissed by respondent. Applicant due to work on ship which had suffered chemical spill. Applicant discussed spill with shift manager (“K”) and respondent claimed issues resolved. Applicant claimed expected to be rostered to work as ship foreman. Role of ship foreman “leading hand” role. Applicant rostered to drive straddle crane instead. Driving straddle crane not “leading hand” duty. Respondent claimed K told applicant twice to drive straddle crane and applicant refused until had spoken to senior shift manager (“M”). At conclusion of meeting with M applicant drove straddle crane. Respondent claimed applicant delayed work and hindered operation on shift. Respondent claimed applicant’s actions refusal to work and initiated disciplinary process. Applicant claimed respondent removed applicant from ship foreman role as applicant would have ensured respondent dealt with dangerous goods issue on ship properly. Respondent claimed applicant aware prior to arrival at work not required to handle dangerous goods. Respondent claimed health and safety concerns not raised in applicant’s discussion with K and not main topic in applicant’s meeting with M. Respondent claimed applicant refused to carry out proper work instructions in breach of terms of employment. Respondent claimed applicant refused to drive straddle crane as disputed allocation on roster rather than dangerous goods issue. Applicant dismissed. Applicant claimed even if breached collective employment agreement (“CEA”) by refusing to carry out work instruction, fact missed one driving slot not serious misconduct.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant twice given reasonable instruction by K to drive straddle crane. Respondent had flexibility under CEA in rostering of duties to employees. Refusal to carry out work instructions serious misconduct under CEA. Respondent had reasonable basis to conclude applicant refused to drive straddle crane as disputed allocated role rather than dangerous goods concerns. Investigation by respondent full and thorough. Summary dismissal within range of responses open to fair and reasonable employer. Single act of negligence could justify dismissal if conduct sufficiently serious to impair trust and confidence. Respondent had sound basis for reaching view no longer had trust and confidence in applicant. Dismissal justified. |
| Result | Application dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s124 |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Angus v Ports of Auckland Ltd [2011] ERNZ 292;Belsham v Ports of Auckland Ltd [2012] NZERA Auckland 412;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448; [2001] 3 NZLR 29 |
| Number of Pages | 7 |
| PDF File Link: | 2013_NZERA_Auckland_136.pdf [pdf 196 KB] |