| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 499 |
| Hearing date | 23 Jul 2013 |
| Determination date | 05 November 2013 |
| Member | R A Monaghan |
| Representation | W Reid ; D France |
| Location | Tauranga |
| Parties | Pakaru v Chief Executive Bay of Plenty Polytechnic |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Dismissal unjustified |
| Abstract | Applicant (Mr Pakaru) employed by respondent (Chief Executive Bay of Plenty Polytechnic) as youth guarantee co-ordinator (Education and Training Sector). Applicant claimed unjustifiably dismissed by respondent. Respondent began investigation into concerns about applicant’s behaviour. Applicant suspended. Respondent interviewed students and staff, set out allegations in letter and attached interview notes. Applicant alleged to have sworn at student (“S”) during fishing trip, threatened to throw S overboard, taken S’s fishing rod for own use and used intimidating language when S protested. Applicant alleged to have sworn at student (“U”). Applicant admitted swearing at U but claimed distracted at time and class contract allowed swearing. Applicant alleged to have sent text message to student (“T”) asking T to sit next to applicant in van because applicant did not want to sit next to another student and alleged to have addressed some students as “babe” in text messages. Applicant claimed used word “bub” as term of endearment. Applicant alleged to have placed hand on T’s knee inappropriately. No suggestion any allegations concerned behaviour sexual in nature. During disciplinary meeting, respondent refused request for applicant’s representative to interview students and staff. Following further meetings and interviews of students and staff, respondent concluded applicant guilty of serious misconduct. Applicant dismissed. Applicant claimed letter confirming dismissal only referred to applicant’s conduct towards S and respondent unable to consider other allegations. Applicant claimed should have had opportunity, through applicant’s representative, to interview witnesses directly. Applicant claimed decision-maker (“W”) should have heard from witnesses directly.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of identities of students. Respondent not expected to conduct formal hearing in nature of trial and obligation to conduct fair and reasonable investigation did not extend to obligation to grant applicant’s representative direct access to witnesses. W entitled to delegate preliminary investigation of allegations, W heard from applicant and applicant’s representative directly on several occasions, and further interviews were conducted as necessary. W not so isolated from primary evidence unfair for W to act as decision-maker. Allegations unclear initially as allegations in interview notes attached to letter wider than allegations set out in covering letter but parties’ discussions centred on allegations in letter rather than wider allegations. Respondent raised concerns with applicant, gave applicant opportunity to respond and considered applicant’s explanations. Letter confirming dismissal could have been clearer as to conduct relied on by respondent to dismiss applicant but respondent relied on all allegations in deciding to dismiss. Open to respondent to conclude applicant swore at S and engaged in intimidating behaviour, including by threatening to throw S overboard. Not reasonably open to respondent to conclude applicant intimidated S by taking fishing rod for own use and used intimidating language towards S as respondent did not address applicant’s motives in wanting S to wait before fishing and did not make findings on other aspects of exchange between applicant and S. Open to respondent to conclude language used by applicant to U exceeded acceptable boundaries. Respondent did not pursue when text messages addressing students as “babe” received but focused on whether being addressed as “bub” acceptable. Respondent’s conclusions about text messages not reasonably open as not enough information applicant asked T to sit next to applicant or applicant used term “babe”, and respondent’s investigations into word “bub” did not question whether sexual connotations existed. Accounts regarding applicant putting hand on T’s knee so vague as to date, time and place respondent’s conclusion not reasonably open. Applicant’s suspension unfair as applicant not told of type of allegations or why respondent concerned. Interview process did not concentrate on obtaining full and accurate account of incidents but instead discussed aspects of applicant’s explanations out of context or returned to generalised complaints about applicant’s behaviour. When multiple acts of misconduct relied upon to justify dismissal, absence of reasonable grounds for concluding any one or more acts occurred would render dismissal unjustified and respondent only had reasonable grounds to support two conclusions. Dismissal unjustified. REMEDIES: 60 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $2,000 compensation appropriate. |
| Result | Application granted ; Contributory conduct (60%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(2);ERA s103A(3);ERA Second Schedule cl10 |
| Cases Cited | Airline Stewards and Hostesses of New Zealand IUOW v Air New Zealand Ltd (1990) ERNZ Sel Cas 985 ; [1990] 3 NZLR 549;Ashton v Shoreline Hotel [1994] 1 ERNZ 421;Ioane v Waitakere City Council [2003] 1 ERNZ 104;Kolo’ofai v Invercargill Passenger Transport Ltd [2012] NZERA Christchurch 46;McKellow v Transportation Auckland Corp Ltd [2012] NZERA Auckland 191;Timu v Waitemata District Health Board [2007] ERNZ 419;Waitemata District Health Board v Timu [2007] ERNZ 673 |
| Number of Pages | 19 |
| PDF File Link: | 2013_NZERA_Auckland_499.pdf [pdf 326 KB] |