| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 392 |
| Hearing date | 31 Jul 2013 |
| Determination date | 02 September 2013 |
| Member | A Fitzgibbon |
| Representation | AM McInally ; A Caisley |
| Location | Kerikeri |
| Parties | Wasson v Top Energy Ltd |
| Summary | DISPUTE – Question answered in favour of respondent – UNJUSTIFIED DISADVANTAGE – No unjustified disadvantage |
| Abstract | Applicant (Mr Wasson) employed by respondent (Top Energy Ltd) as senior faultman (Electricity, Gas, Water and Waste Services Sector). Parties disputed lawfulness of respondent’s emergency community service work policy (“Policy”). Applicant claimed unjustifiably disadvantaged by prohibition on undertaking community work during work hours. Applicant required by respondent to be on-call at certain times. Applicant also Chief Fire Officer at volunteer fire brigade. Applicant had previously attended Fire Service call outs during work hours and while on-call for respondent. Respondent decided to introduce rules in respect of employees engaged in emergency community service work. Draft policy circulated and included prohibition on employees being available for emergency community service work while on-call for respondent. Draft policy provided for certain amount of paid leave to be provided for employees to attend emergency community service work during work hours. Applicant made submission. Final Policy circulated at staff meeting chaired by applicant. Twenty months later applicant responded to emergency Fire Service call out while on-call for respondent. Applicant attended call out in respondent’s vehicle and exceeded speed limit. Respondent commenced disciplinary investigation into speeding and applicant explained was speeding because attending emergency Fire Service call out. Applicant claimed not aware of prohibition on attending Fire Service call outs and did not know final Policy introduced. Applicant accepted written warning for speeding. Respondent investigated and rejected applicant’s claims. Respondent prohibited applicant from attending community service work during work hours for 12 month period. Respondent claimed ‘withdrawal of privilege’ of attending Fire Service call outs during work hours akin to withdrawing discretionary benefit and not capable of amounting to unjustified disadvantage.;AUTHORITY FOUND –;DISPUTE: Draft policy finalised and introduced by respondent following proper process of consultation. Policy not inconsistent with any term of applicant’s employment agreement. Respondent recognised danger of conflict situation arising if applicant attended Fire Service call outs while on-call with respondent and formulated Policy to remove such risk. Policy lawful. Question answered in favour of respondent.;UNJUSTIFIED DISADVANTAGE: Applicant aware of prohibition on attending Fire Service call outs while on-call for respondent as applicant’s submission on draft policy addressed prohibition. Respondent entitled to conclude applicant aware of final Policy. Applicant had been able to attend Fire Service call outs for many years and Policy allowed for certain number of hours each year for employees to attend call outs during work hours. Ability to respond to Fire Service call outs during work hours condition of applicant’s employment rather than discretionary benefit. Applicant’s action in attending Fire Service call out while on-call for respondent placed applicant in conflict of interest situation and had potential to be very dangerous. Respondent conducted thorough investigation and entitled to conclude applicant’s breach of Policy serious misconduct. Prohibition on applicant attending Fire Service call outs during work hours for 12 month period fair and reasonable. Applicant’s inability to comment on appropriate sanction minor defect in process not resulting in applicant being treated unfairly. No unjustified disadvantage. |
| Result | Question answered in favour of respondent ; Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103A;ERA s103A(2);ERA s103A(5) |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40;ANZ National Bank Ltd v Doidge [2005] ERNZ 518;Chief Executive of the Department of Inland Revenue v Buchanan (No 2) [2005] ERNZ 767;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 | 13 |
| PDF File Link: | 2013_NZERA_Auckland_392.pdf [pdf 322 KB] |