| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 150 |
| Hearing date | 16 Jan 2014 - 17 Jan 2014, 23 Jan 2014 (3 days) |
| Determination date | 16 April 2014 |
| Member | R Larmer |
| Representation | P Swarbrick, A Singh ; E Butcher |
| Location | Whangarei |
| Parties | Catanuto v Te Runanga O Whaingaroa Inc |
| Summary | PENALTY - GOOD FAITH - Applicant sought penalty for respondent's breaches of good faith - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Whether appointment of staff member outside budget and not sustainable - Whether applicant placed staff and respondent at risk by association with individual (X") - Whether applicant made submission without respondent's approval - Alleged subsequently discovered serious misconduct - Whether irregularities in applicant's bank token use - Chief executive" |
| Abstract | AUTHORITY FOUND -;PENALTY - GOOD FAITH: Authority ordered non-publication of evidence given to Authority during closed parts of investigation meeting. Applicant not provided with access to any information relied on by respondent and respondent failed to provide applicant with information requested. Respondent failed to respond to applicant's queries about allegations. Respondent did not disclose information obtained from other Board member (M") or M's considerable input into, and influence on, disciplinary process. Respondent failed to tell applicant rejected information supplied by applicant. Respondent proceeded on basis that one allegation said opposite of what recorded in disciplinary letter and respondent unable to explain what one allegation meant. Respondent breached good faith duty but breaches not deliberate. No penalty.;UNJUSTIFIED DISMISSAL: Respondent's beaches of good faith undermined ability to justify dismissal. Respondent failed to investigate concerns sufficiently or raise concerns with applicant fully or fairly. Respondent failed to give applicant reasonable opportunity to respond to concerns and did not follow own process. Applicant's explanation not considered. Different reasons for dismissal relied on by respondent at different stages of process. Fair and reasonable employer expected to deal with each specific misconduct allegation. Respondent not clear when applicant dismissed exactly what applicant dismissed for or why. Dismissal appeared predetermined. Fair and reasonable employer would have recorded applicant's responses properly. Process so fundamentally flawed that respondent's conclusions could not be justified. Applicant should reasonably be regarded as entitled to appoint staff without interference from individual Board members and respondent could have issued instruction if opposed to appointment. Respondent unable to explain allegation regarding appointment of staff member. Applicant took action regarding issue with X. No evidence of wrongdoing by applicant attending hui at which X also present. Applicant instructed to make submission and not required to put respondent on notice content of submission finalised by applicant. No specific instructions around content or filing of submission. Respondent unable to point to highly sensitive and confidential material in submission. Respondent failed to invoke probationary period clause in applicant's employment agreement. Respondent failed to adhere to requirements of Trust Deed and decision to dismiss made by committee without proper delegated authority. Dismissal unjustified. No reliable evidence applicant misused bank token. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $12,000 compensation appropriate." |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($12,000) ; Application dismissed (penalty - good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4(1A);ERA s4A;ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s103A(5);ERA s124;ERA s128(2) |
| Number of Pages | 22 |
| PDF File Link: | 2014_NZERA_Auckland_150.pdf [pdf 289 KB] |