| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 492 |
| Hearing date | 15 May 2013 |
| Determination date | 30 October 2013 |
| Member | K J Anderson |
| Representation | G Bennett ; P Robertson |
| Location | Auckland |
| Parties | Sudhakar v Board of Trustees, Sir Edmund Hillary Collegiate |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Dismissal justified |
| Abstract | Applicant (Mrs Sudhakar) employed by respondent (Board of Trustees, Sir Edmund Hillary Collegiate) as teacher (Education and Training Sector). Applicant claimed unjustifiably dismissed by respondent. Parent (“Mrs A”) claimed told by child (“A”) that applicant pulled A’s ear and hit A on back of head. Respondent’s principal (“S”) asked Mrs A to make formal complaint, commenced investigation and told applicant not to discuss incident with class or A. S interviewed A and other students. Mrs A claimed received phone call from applicant. Mrs A claimed applicant stated did not mean to hit A and apologised. Mrs A claimed applicant asked Mrs A not to send complaint to respondent. Applicant claimed apologised for hurting Mrs A’s feelings and denied asking Mrs A not to make formal complaint. Mrs A made formal complaint. Mrs A’s household received further telephone calls from anonymous person and respondent’s chairman. A and two other students approached S to retract statements and A now stated had been tapped by applicant but not hit. S claimed had strong suspicion applicant had ignored instructions and spoken to class about incident and coached children what to say. At meeting between S and applicant, applicant denied hitting A or pulling A’s ear. S referred matter to respondent. Respondent’s disciplinary subcommittee (“subcommittee”) interviewed A, Mrs A and applicant. Applicant maintained denial of hitting A. Subcommittee heard from other teacher who claimed overheard applicant cajoling A and asking if A really wanted applicant to leave school. Subcommittee concluded applicant hit A and pulled A’s ear, tried to get children to change statements and tried to stop Mrs A from making written complaint. Applicant given opportunity to respond to preliminary conclusion applicant guilty of misconduct. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Procedural requirements complied with appropriately by respondent. Telephone calls received by Mrs A’s household may have originated as result of applicant discussing complaint with other parties. Questioning of A during interview by subcommittee leading in nature and related to whether applicant had hit other children. Clear A exaggerated version of events in regard to other children allegedly hit by applicant and A’s account during interview quite unreliable. Interview technique quite inappropriate and would have been difficult for respondent to rely on evidence elicited from A but for credible evidence of Mrs A. Children interviewed at various times with result that, because of children’s young age and manner in which interviews took place, little reliance could be placed on what children said and respondent’s investigation close to being flawed. While some validity in applicant’s complaints about interviews of children and exaggeration by A, Mrs A credible witness and Mrs A’s evidence accurate recollection of what A told Mrs A. Respondent entitled to conclude applicant engaged in serious misconduct relating to physical assault of A and interfered in investigation by attempting to persuade young children to change version of events. Open to fair and reasonable employer to dismiss applicant. Dismissal could have been avoided if applicant acknowledged actions inappropriate rather than maintaining position of total denial. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(2);ERA s103A(3) |
| Cases Cited | Chief Executive of the Ministry of Maori Development v Travers-Jones [2003] 1 ERNZ 174;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 |
| Number of Pages | 17 |
| PDF File Link: | 2013_NZERA_Auckland_492.pdf [pdf 270 KB] |