| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 384 |
| Hearing date | 5 Aug 2013 |
| Determination date | 28 August 2013 |
| Member | T G Tetitaha |
| Representation | L Keys, M Dignan ; D France |
| Location | Auckland |
| Parties | Kensington v Air New Zealand |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Whether applicant entitled to domestic leave to look after sister – Whether applicant truthful that sister sick and dependent upon applicant for care – Applicant instructed to report for work – Whether disparity of treatment with other employee - Sick leave – Flight attendant |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent conducted full and fair investigation. No evidence of predetermination. Errors allegedly made by respondent did not materially affect respondent’s finding about applicant’s truthfulness. Applicant’s behaviour did not assist matters and created confusion about applicant’s sister’s actual health and applicant’s motive for taking leave but behaviour needed to be weighed against other evidence. Error for respondent to exclude evidence of applicant’s sister’s midwife without taking opportunity to make further enquiries or refer midwife’s opinion to another doctor for assessment. Respondent could not compel applicant’s husband to give face to face interview and respondent’s refusal to interview applicant’s husband by telephone did not validate conclusion applicant untruthful. Applicant’s explanation for mother’s unavailability reasonable. Fair and reasonable employer could not conclude applicant untruthful about sister being sick and dependent on applicant based on evidence before respondent. Adequate explanation for disparity of treatment with other employee. Respondent’s concerns about applicant’s low ranking, below average PD scores and above average absenteeism not put to applicant for comment. Dismissal unjustified. REMEDIES: Authority reserved issue of remedies but indicated finding of substantial contributory conduct on applicant’s part. |
| Result | Application granted ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(5);ERA s124;Holidays Act 2003;Holidays Act 2003 s65 |
| Cases Cited | Airline Stewards and Hostesses of NZ IUOW v Air NZ Ltd (1985) ERNZ Sel Cas 156;Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466 |
| Number of Pages | 11 |
| PDF File Link: | 2013_NZERA_Auckland_384.pdf [pdf 185 KB] |