| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 211 |
| Hearing date | 11-12 Feb 2014 |
| Determination date | 29 May 2014 |
| Member | R Larmer |
| Representation | S McBeath ; E Burke |
| Location | Tauranga |
| Parties | Murray v CNI Early Education Services Trust |
| Summary | PENALTY - GOOD FAITH - Applicant sought penalty for respondent's breach of good faith duty - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Early childhood education - Whether applicant threw water on child - Whether applicant cleaned child's sore toe roughly - Whether applicant screamed at child - ARREARS OF HOLIDAY PAY - Applicant sought arrears of holiday pay - Centre manager |
| Abstract | AUTHORITY FOUND -;PENALTY - GOOD FAITH: Respondent's failure to provide details of specific disciplinary allegations when applicant first spoken to not breach of good faith as respondent at beginning of investigation without specific disciplinary allegations formulated. Respondent's failure to provide all relevant information to applicant with disciplinary letter not breach of good faith as information provided to applicant subsequently. Applicant had sufficient details to respond to allegations at disciplinary meeting. Applicant provided with new information obtained by respondent. No breach of good faith. No penalty.;UNJUSTIFIED DISMISSAL: Respondent's note taking seriously deficient. Witnesses asked leading questions. Respondent's investigation into information provided by witness (H") inadequate and evidence did not sustain conclusion applicant admitted splashing water in child's face. Respondent accepted H's allegation at face value without inquiring into specific basis of allegation fully or properly. Investigation into allegation regarding cleaning child's toe inadequate especially given potentially very serious consequences for applicant. Not fair and reasonable to conclude applicant yelled at child based on limited information obtained by respondent. Respondent failed to consider timing of allegations by employee ("R"), deterioration in relationship between R and applicant and inconsistencies in witness accounts. Respondent failed to give applicant opportunity to respond to certain information. Respondent failed to investigate applicant's concern that respondent's notes inaccurate and failed to interview all potential witnesses. No sufficient investigation of allegations against applicant. Procedural failures not minor and fundamentally undermined substantive justification for dismissal. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Leave reserved for parties to return to Authority if unable to determine quantum. $8,000 compensation appropriate.;ARREARS OF HOLIDAY PAY: Applicant had two days' pre-approved annual leave deducted while effectively suspended during investigation. Respondent to pay applicant arrears of holiday pay, quantum to be determined. Leave reserved for applicant to return to Authority to determine quantum." |
| Result | Applications granted (unjustified dismissal)(arrears of holiday pay) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($8,000) ; Arrears of holiday pay (quantum to be determined) ; Applications dismissed (penalty)(good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s4(1A)(c);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(4);ERA s103A(5);ERA s124;ERA s128(3) |
| Cases Cited | Lewis v Howick College Board of Trustees [2010] ERNZ 1 |
| Number of Pages | 17 |
| PDF File Link: | 2014_NZERA_Auckland_211.pdf [pdf 263 KB] |