| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 44 |
| Hearing date | 25 Feb 2014 |
| Determination date | 24 March 2014 |
| Member | C Hickey |
| Representation | P Tucker ; S Wilson |
| Parties | A v B Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Failure to disclose previous convictions when applying for another role within respondent - Whether nature of convictions greatly at odds with respondent's family values and culture - Previous offences resulted in terms of imprisonment - Previous conviction for drunk driving - Previous convictions discovered when Police objected to applicant's application for Secondhand Dealers Licence required as part of job - Suspension - Out of work conduct - Dismissal over phone |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of parties' identities and details of applicant's offending. Respondent did not undertake criminal record check and did not make applicant's continued employment conditional on any subsequently discovered false information given by applicant. Convictions uncovered after six years of otherwise satisfactory service and no suggestion of dishonesty other than concealment of previous convictions. Convictions between 15 and 17 years old when applicant filled in application form and more than 20 years old when discovered by respondent. Difficult to conclude nature of applicant's convictions intrinsically related to applicant's employment and made it less likely respondent could rely on applicant to undertake duties diligently without repetition of criminal behaviour. Respondent's claim trust and confidence in applicant destroyed undermined by fact applicant allowed to remain in role for week after concerns raised. No formal investigation but applicant admitted previous convictions. Allegations not made completely clear to applicant other than not being truthful on application form. Never clear to applicant that employment in jeopardy. Respondent's desire for haste compromised fairness of process and no evidence respondent took into account some factors put forward by applicant. Dismissal unjustified. REMEDIES: Applicant had some responsibility to ascertain obligations in relation to declaring convictions to employers. 25 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Leave reserved for applicant to return to Authority for determination of quantum. $6,750 compensation appropriate. |
| Result | Application granted ; Contributory conduct (25%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($6,750) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Contractual Remedies Act 1979;Criminal Records (Clean Slate) Act 2004;ERA;ERA s103A;ERA s103A(3);ERA s124;ERA s128(2);ERA Second Schedule cl10;Legal Services Act 2011 s45;Legal Services Act 2011 s46 |
| Cases Cited | Bourne v Carter Holt Harvey Ltd [2011] NZERA Auckland 18;Murray v Attorney-General in respect of the Chief Executive of the Inland Revenue Department [2002] 1 ERNZ 184;Smith v Christchurch Press Co Ltd [2000] 1 ERNZ 624 ; [2001] 1 NZLR 407;Tai v Robinson, (t/a Coronation Lodge Rest Home) [2004] 1 ERNZ 270 |
| Number of Pages | 18 |
| PDF File Link: | 2014_NZERA_Christchurch_44.pdf [pdf 219 KB] |