| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 9 |
| Hearing date | 30 Oct 2013 |
| Determination date | 23 January 2014 |
| Member | C Hickey |
| Representation | A McKenzie ; J Dobson |
| Location | Christchurch |
| Parties | McLay v Chief Executive of the Department of Corrections |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by first and final written warning - Applicant unfamiliar with Court security process and believed probation officers were considered staff - Alleged failure to identify self - Respondent alleged applicant refused to comply with security requirements, engaged in inappropriate behaviour when challenged by Court security staff and refused to follow instruction - Whether warning for unlimited duration - Video footage - Probation officer |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE: Applicants initial behaviour based on mistaken belief, not wilful or deliberate. Not reasonable to classify confusion and mistake as refusal. Way allegations framed amplified conduct. Respondent should have investigated people shown in video footage to establish whether applicant's identity made known to Court security staff. No audio therefore situation could not be fully ascertained. Possible security staff overzealous. Specific allegation about need to initiate physical contact with applicant not put to applicant. Insufficient investigation. Warning appeared to be unlimited duration. Applicant unjustifiably disadvantaged by first and final written warning. REMEDIES: 75% contributory conduct. Respondent ordered to reinstate applicant to position as if warning not issued. $1,250 compensation appropriate. |
| Result | Application granted; Compensation for humiliation etc ($1,250); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b) - ERA s103A - ERA s103A(1) - ERA s103A(2) - ERA s103A(3)(a) - ERA s103(4) - ERA s124 - ERA s174 - |
| Cases Cited | Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;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 | 16 |
| PDF File Link: | 2014_NZERA_Christchurch_9.pdf [pdf 288 KB] |