| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 221 |
| Hearing date | 19 Nov 2013 - 20 Nov 2013 (2 days) |
| Determination date | 31 May 2013 |
| Member | R A Monaghan |
| Representation | J Kilpatrick (in person) ; D France |
| Location | Auckland |
| Parties | Kilpatrick v Air New Zealand Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by feedback process and respondent’s refusal to allow applicant to resume operational duties without clearance from respondent’s doctors – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for conduct during tour of duty and subsequently – Authority found applicant not unfairly singled out by feedback method and respondent entitled to instruct applicant to remain on aircraft to receive feedback – Found applicant not unjustifiably disadvantaged by feedback process – Found applicant absent for 14 consecutive days and respondent entitled to rely on requirement for medical clearance from respondent’s doctors in general operating procedures (“GOP”) manual – Found applicant not unjustifiably disadvantaged by respondent’s refusal to allow applicant to resume operational duties – Found applicant not constructively dismissed by being placed on leave without pay or by respondent’s insistence applicant be cleared to resume operational duties – Found incidents in-flight during tour of duty and during subsequent feedback process particular examples of broader problem with applicant’s behaviour – Found reasonable for respondent to conclude applicant’s claim fit to work act of misconduct when made in face of respondent’s repeated instructions applicant to obtain clearance under GOP manual – Found applicant should not have operated subsequent tour of duty – Found applicant had sufficient time to prepare response to allegations – Found nature and quality of applicant’s conduct meant fair and reasonable employer could conclude employment relationship could not continue – Dismissal justified – PENALTY – Applicant sought penalties for respondent’s breach of employment agreement (“EA”) and good faith duty – Found no breach of EA and no merit in claim for breach of good faith duty – No penalty – Flight attendant |
| Abstract | Applicant employed by respondent as flight attendant. Applicant claimed unjustifiably disadvantaged by feedback process and respondent’s refusal to allow applicant to resume operational duties without clearance from respondent’s doctors. Applicant claimed unjustifiably dismissed by respondent and sought penalties for respondent’s breach of employment agreement (“EA”) and good faith duty. During tour of duty flight service manager (“C”) considered applicant so disruptive C decided to give feedback when aircraft on ground, rather than inflight as usual practice, and requested assistance from senior managers. After landing applicant refused to remain on aircraft to receive feedback although warned by senior manager applicant’s continual refusal could lead to disciplinary action. Applicant claimed stated twice felt sick but C stated did not believe applicant. Applicant claimed should have been provided with medical treatment. Applicant agreed to receive feedback on aircraft but claimed spoken to in manner intended to humiliate applicant. Applicant claimed treated differently from other crew members and wrongly prevented from leaving aircraft. Applicant went on sick leave. Respondent relied on collective employment agreement (“CEA”) and asked applicant to attend appointment with respondent’s doctors. Applicant did not attend appointment, and expressed concerns to respondent. Respondent replied to concerns and instructed applicant to attend further appointment. Applicant did not attend further appointment. Applicant placed on leave without pay after sick leave entitlement exhausted. Applicant claimed cleared to return to work by own doctor. Respondent relied on general operating procedures (“GOP”) manual to require applicant to obtain clearance from respondent’s doctors before returning to work after absence of 14 consecutive days. Respondent urged applicant to meet with respondent’s doctors or authorise respondent’s doctors to contact applicant’s doctor. Applicant completed further tour of duty when respondent issued roster in error. Applicant claimed constructively dismissed by respondent’s refusals to allow applicant to resume operational duties. Respondent commenced investigation into applicant’s conduct and sought meeting with applicant to discuss specific concerns. Applicant claimed did not have enough time to prepare response. Respondent did not receive applicant’s letter and sought unsuccessfully to contact applicant three times. Applicant warned meeting would proceed without applicant if no response received. Applicant did not attend meeting. Respondent’s findings included applicant failed to act with integrity and respect for others during tour of duty, had been insubordinate, and either reported for tour of duty when not fit to operate or submitted misleading fatigue reports. Respondent claimed applicant failed to follow clearance process for return to work and operated further tour of duty when not cleared to fly. Applicant did not comment on findings. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: C entitled to wait until aircraft had landed and seek assistance before giving applicant feedback given applicant’s alleged in-flight behaviour. Respondent entitled to instruct applicant to remain on aircraft to receive feedback, obliged to warn applicant of consequences if refused to follow instruction and no attempt made to restrain applicant. Nothing in applicant’s claims of illness suggested immediate medical treatment required. Applicant not subjected to abusive feedback process. Applicant not unjustifiably disadvantaged by feedback process. Respondent entitled to require applicant to undergo medical examination but CEA did not specify practitioner to provide examination. Premature for respondent to arrange appointment during first 14 days of applicant’s absence but no disadvantage suffered by applicant. Applicant obliged to follow respondent’s manuals, had been absent for 14 consecutive days and respondent entitled to rely on requirement for medical clearance in GOP manual. Applicant entitled to raise concerns about examination process but concerns could have been allayed and applicant had received assurances from respondent. Applicant not unjustifiably disadvantaged by respondent’s refusal to allow applicant to resume operational duties. Applicant not constructively dismissed when placed on leave without pay or when respondent maintained insistence applicant receive medical clearance although applicant had completed further tour of duty. Incidents in-flight during tour of duty and subsequent feedback process particular examples of broader problem with applicant’s behaviour and included fact aircraft captain sufficiently concerned to consider standing applicant down as applicant’s behaviour threatened safety. Reasonable for respondent to conclude applicant misused reporting system. Evidence indicated applicant not fatigued when filed fatigue report during earlier tour of duty. Reasonable for respondent to conclude applicant’s claim fit to work act of misconduct when made in face of respondent’s repeated instructions applicant obtain clearance under GOP manual. Given extensive exchanges between parties, reasonable for respondent to conclude applicant operated further tour of duty wrongly without clearance. Applicant entitled to seek further time to prepare response but ultimately provided with sufficient time. Nature and quality of applicant’s conduct meant fair and reasonable employer could conclude employment relationship could not continue. Dismissal justified.;PENALTY: No breach of applicant’s EA and no merit in claim for breach of good faith duty. No penalty. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s103(1)(b);ERA s103(3);ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(4);ERA s103A(5);Health and Safety in Employment Act 1992;New Zealand Bill of Rights Act 1990 |
| Cases Cited | Kiely v Air New Zealand Ltd unreported, L Robinson, 20 April 2007, AA113/07 |
| Number of Pages | 23 |
| PDF File Link: | 2013_NZERA_Auckland_221.pdf [pdf 309 KB] |