| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 84 |
| Hearing date | 21 Mar 2013, 9 Apr 2013 (2 days) |
| Determination date | 10 May 2013 |
| Member | C Hickey |
| Representation | M Saunders ; T Robinson |
| Location | Christchurch |
| Parties | Tierney v Suntrap Lobster Inn Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for behaviour on duty and unacceptable relationships with fellow employees – Authority found letter inviting applicant to disciplinary meeting did not specify when applicant alleged to have been intoxicated on duty, who made allegation and employees applicant alleged to have poor relationship with, and should have included copy of initial complaint – Found respondent unable to conclude applicant nasty to particular employee without knowing what applicant said – Found further information gathered not put to applicant – Found applicant unable to challenge respondent’s view drug test not useful – Found respondent did not put specific allegations applicant may have been under influence of alcohol or hung-over to applicant and agreement to pay for drug test contributed to applicant’s view under investigation for drug use – Found applicant not told of allegation had taken soft drinks or shown video footage underpinning allegation – Found dismissal pre-determined – Found respondent’s finding applicant intoxicated unsafe to extent suggested applicant used illegal drugs – Dismissal unjustified – REMEDIES – 15 per cent contributory conduct – Respondent to pay applicant $1,190 reimbursement of lost wages – $5,100 compensation appropriate – Head chef |
| Abstract | Applicant employed by respondent as head chef. Applicant claimed unjustifiably dismissed by respondent. Bar manager (“R”) made complaint about applicant’s behaviour on certain night and claimed applicant seemed under influence of drugs or intoxicated. Fellow employee made similar comment. Applicant did not arrive at work on time next day and claimed slept through alarm. Applicant called to meeting to discuss allegations of intoxication while on duty, failure to turn up for shift and relationship with fellow employees. At meeting R’s note read to applicant and respondent stated other employees had verified applicant’s behaviour. Applicant denied drinking within eight hours of shift, denied took drugs, offered to take drug test and provided urine sample. Respondent interviewed several employees. Respondent considered drug test would not be useful after told by Police officer some drugs would be out of body within 24 hours and brought planned meeting forward by three days. Before meeting respondent viewed video footage respondent considered showed applicant drank bottle of soft drink dishonestly. Respondent asked applicant if knew where bottles had gone but did not tell applicant had viewed video footage. After meeting applicant dismissed. Drug test results not available until following day and did not detect any drugs tested for. Respondent claimed applicant dismissed for behaviour on certain night and not for drug use or for drinking before work. Respondent claimed applicant’s relationship with fellow employees unacceptable, including applicant nasty to particular employee (“B”). Although respondent told advisor before final meeting considered applicant took some substance affecting applicant’s work and would be dismissed, respondent claimed would have continued investigation if applicant gave honest and genuine explanation at meeting.;AUTHORITY FOUND –;UNJUSTIFIED DISMISAL: Letter inviting applicant to disciplinary meeting did not specify when applicant alleged to have been intoxicated on duty, who made allegation and employees applicant alleged to have poor relationship with. Given seriousness of allegation, copy of R’s note should have been attached to letter. Applicant not told at meeting which employees verified applicant’s behaviour or what employees said about applicant’s behaviour on certain night. Respondent did not interview B about allegation applicant nasty to B and unable to conclude allegation proved without knowing what said. While respondent’s further investigation after disciplinary meeting fair way to respond to applicant’s denial drank within eight hours of shift or took drugs, information gathered not put to applicant at final meeting. Applicant unaware respondent relied on information from Police in bringing final meeting forward and unable to challenge respondent’s view drug test not useful. Respondent did not put specific allegation applicant may have been under influence of alcohol or hung-over on certain night to applicant and agreement to pay for drug test contributed to applicant’s view under investigation for drug use. Respondent considered allegation applicant had taken soft drinks when deciding to dismiss but applicant not told of allegation or shown video footage underpinning allegation. Respondent clear before final meeting considered applicant took some kind of drug or other substance affecting applicant’s work and decision to dismiss pre-determined. Respondent’s finding applicant intoxicated unsafe to extent suggested applicant used illegal drugs. Respondent entitled to consider previous warnings and discussions about applicant’s on-going performance. Dismissal unjustified. REMEDIES: Although respondent did not consider applicant’s failure to report to work for shift in deciding to dismiss, applicant’s failure contributed to situation giving rise to grievance. 15 per cent contributory conduct. Respondent to pay applicant $1,190 reimbursement of lost wages. $5,100 compensation appropriate. |
| Result | Application granted ; Contributory conduct (15%) ; Reimbursement of lost wages ($1,190) ; Compensation for humiliation etc ($5,100) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(1)(b);ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s124;ERA s128 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40 |
| Number of Pages | 15 |
| PDF File Link: | 2013_NZERA_Christchurch_84.pdf [pdf 208 KB] |