| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 40 |
| Hearing date | 5 Dec 2013 |
| Determination date | 04 February 2014 |
| Member | J Crichton |
| Representation | J French (in person) ; J Dewar |
| Location | Hamilton |
| Parties | French v McAra Air Conditioning Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed racially harassed and unjustifiably disadvantaged by suspension – Applicant claimed unjustifiably dismissed by respondent – Whether applicant racially harassed by supervisor (“B”) – Whether applicant referred to by racially pejorative term in text messages from B – Whether applicant made multiple complaints about harassment – Request for pay rise – Applicant criticised general manager (“G”) and repeated criticisms to respondent’s managing director – Whether applicant insubordinate by making objectionable and critical comments about G – Whether applicant failed to obey lawful instruction to attend meeting where applicant to be told of suspension proposal – Whether applicant failed to understand meaning of “penalty” applicant asked to make submissions on – Refusal to accept resignation while disciplinary process continued – Service technician |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: B sent offending text messages to applicant. Respondent acted in response to one text message from B but not made plain to respondent that B in habit of sending intemperate and racially abusive text messages. Respondent not aware of other inappropriate text messages until disciplinary process against applicant. Applicant had adequate opportunity to respond to suspension proposal but applicant’s actions made respondent’s attempts to consult about suspension impossible. No unjustified disadvantage. Applicant made thoroughly inappropriate observations about G on two occasions. Applicant’s explanations for not attending meeting regarding suspension proposal not provided to respondent at time. Respondent followed careful and measured process and gave applicant opportunity to address allegations. Applicant adopted truculent approach to disciplinary process. Good and fair employer could have dismissed applicant for either insubordination or failing to obey lawful instruction. Dismissal justified. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 15 |
| PDF File Link: | 2014_NZERA_Auckland_40.pdf [pdf 194 KB] |