| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 131 |
| Hearing date | 21-22 Feb 2013;2 Aug 2013 |
| Determination date | 21 October 2013 |
| Member | P R Stapp |
| Representation | B Buckett ; S Hornsby-Geluk |
| Location | Wellington |
| Parties | Mala v Accident Compensation Corporation |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – No unjustified disadvantage – Dismissal unjustified |
| Abstract | Applicant (Ms Mala) employed by respondent (Accident Compensation Corporation) as case coordinator (Public Administration and Safety Sector). Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent. Respondent had protocols requiring immediate notification of potential privacy breaches. Applicant sent e-mail to client (“J”) containing private information about other clients. Following telephone conversation between applicant and J, applicant sent same e-mail to J again. Applicant denied told J to delete e-mails and claimed did not know had been privacy breach. Applicant did not bring incident to respondent’s attention or file e-mails in respondent’s document management system. Applicant did create file note of conversation with J but note not complete as to what occurred. J complained and respondent commenced investigation. Senior manager (“R”) held delegated authority for dismissal and suspension. Manager (“T”) held delegated authority to undertake investigation and sub-delegated authority to suspend applicant and dismiss applicant subject to approval. Respondent became aware of previous incident where applicant accidentally sent information to wrong e-mail address. Applicant did not know about second incident until brought to applicant’s attention by respondent. Respondent’s branch manager (“C”) contacted J to seek further details of privacy breach. C disposed of original notes of conversations but sent information given by J to T. At subsequent meeting respondent advised applicant considering suspension and sought applicant’s comment. Two days later applicant claimed not aware privacy breach had occurred, had called J to help J understand e-mails and asked J to delete e-mail as applicant would send e-mail again with larger font. Applicant suspended. C contacted J for further information and made evaluation of J’s reliability in e-mail exchange with T. Subsequent meeting held without R present. Following further exchanges respondent concluded applicant’s account not plausible and applicant acted dishonestly in not disclosing incident. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: T acted as decision-maker incorrectly as authority had been delegated to R and could not be sub-delegated to T. Failure to apply delegations correctly underlying factor but did not nullify respondent’s actions. Respondent entitled to take disciplinary action given disclosure of confidential client information. Concern put to applicant for response who seemed to accept suspension at time. Suspension justified notwithstanding wrong person used delegation to suspend applicant. No unjustified disadvantage. Respondent accepted applicant’s actions in disclosing information accidental. Respondent entitled to rely on information from J as applicant did not make proper record of incident but respondent could not rely on fact applicant did enter some information and made prior mistake to conclude applicant covered up disclosure of information to J. Respondent’s failure to keep full notes of conversations with J not fatal but raised concerns about clarity of what happened between applicant and J. Respondent’s investigation thorough and applicant had chance to respond to concerns. Respondent’s failure to obtain information in writing directly from J and failure to apply delegations properly meant some doubt information considered objectively given applicant’s denial of wrongdoing. Serious allegation of dishonesty required serious degree of proof. Fair and reasonable employer could have given applicant benefit of doubt that applicant did not deliberately try to cover up release of information. Decision applicant not plausible not based on sufficient evidence meeting gravity of allegations given difference between applicant’s and J’s accounts and evidence to support applicant’s account. While decision would likely not have been different if respondent applied delegations correctly, respondent unable to show applicant treated fairly through objective consideration of applicant’s position. Dismissal unjustified. REMEDIES: 25 per cent contributory conduct. Applicant's contributory conduct and two incidents of disclosure of confidential information meant reinstatement not practicable and reasonable. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $6,000 compensation appropriate. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (25%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($6,000) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(1);ERA s103A(2);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s103A(4);ERA s103A(5) |
| Number of Pages | 17 |
| PDF File Link: | 2013_NZERA_Wellington_131.pdf [pdf 203 KB] |