| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 495 |
| Hearing date | 28 Aug 2013 |
| Determination date | 31 October 2013 |
| Member | R Arthur |
| Representation | A Taylor; D Erickson |
| Parties | Smith v Waste Disposal Services |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent – Respondent alleged applicant scavenged items left at site, allowed others to breach scavenging policy, and breached health and safety policy and code of conduct in dealing with subordinates – Whether applicant failed to take proper steps to repair faulty door lock on loader used in refuse pit – Whether applicant informed labour agency not to send possible complainants against applicant for further assignments – Whether applicant attempted to contact employees about investigation – Site manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Suspension on pay authorised by applicant’s employment agreement. Applicant provided with opportunity to comment on suspension proposal. No unjustified disadvantage. Respondent failed to interview all staff with relevant information, provide applicant with all information and reveal identity of complainants. Respondent failed to fully and fairly canvass prospect of different accounts or explanations for events and conversations. No specific examples provided of applicant’s unfairness to subordinates. Respondent failed to provide information related to repairs on loader door and interviews with site supervisor who also faced disciplinary investigation. Identities of complainants material to allegations. Investigation not full and fair. Respondent could not conclude breach of scavenging policy without investigating what applicant led to understand about policy. Disparity of treatment between applicant and other employees. Applicant instructed labour agency to remove possible complainant and contacted employees during investigation. Applicant engaged in ploy to take items from refuse station. Dismissal unjustified. REMEDIES: Reinstatement not practicable and reasonable. One third contributory conduct. $5,000 compensation appropriate. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (one third) ; Compensation for humiliation etc ($5,000) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A(3)(a);ERA s103A(5);ERA s124;ERA s174 |
| Cases Cited | Goodman Fielder New Zealand Ltd v Ali (No 2) [2003] 2 ERNZ 656;Otumarama Private Hospital Ltd v Bell [1995] 2 ERNZ 491;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808;Porter v The Board of Trustees of Westlake Girls’ High School [1998] 1 ERNZ 377;Singh v Sherildee Holdings Ltd t/a New World Opotiki unreported, Couch J, 22 September 2005, AC53/05 |
| Number of Pages | 18 |
| PDF File Link: | 2013_NZERA_Auckland_495.pdf [pdf 273 KB] |