| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 256 |
| Hearing date | 15-16 May 2014 |
| Determination date | 24 June 2014 |
| Member | J Crichton |
| Representation | G Ballara ; P Chemis, T Hogg |
| Location | Auckland |
| Parties | Waite v Kiwirail Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Altercation between applicant and colleague (S") - Whether applicant intentionally damaged S's car by deflating tyres - Dismissal on notice - Whether no misconduct revealed by CCTV footage - Service person" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Respondent failed to eliminate possible explanations for damage to S's car other than deliberate act but respondent's conclusion not undermined given nature of damage. Would have been better for respondent to have retained rear tyre for analysis. Respondent should have made certain all relevant CCTV footage available rather than receiving footage amounting to highlights package, but respondent complied overall with obligations relating to disclosure of CCTV footage. No information relied on by respondent not provided to applicant. Respondent did not conclude CCTV footage showed applicant damaging S's car but entitled to focus attention on applicant by eliminating possibility anyone else near vehicle. Inconclusive video material not only evidence against applicant. Applicant may have been able to persuade respondent of applicant's version of events if did not adopt truculent and unhelpful approach. Not possible for applicant to have tampered with both tyres in 11 second window available but more likely than not damage to tyres had separate and distinct causes. Respondent focused primarily on damage to left rear tyre. Previous written warning for improper completion of timesheets played no material part in disciplinary process. Nothing improper in respondent forming provisional conclusions. No evidence respondent removed applicant's name from roster deliberately in advance of dismissal. No predetermination. Procedural deficiencies minor and did not result in unfairness to applicant. Respondent entitled to see unpleasant exchange between applicant and S in hours before damage to S's car identified as symptomatic of unsatisfactory or even toxic workplace relationship and factor in disciplinary inquiry. Respondent's conclusions robust enough to stand scrutiny as applicant only person cited near S's vehicle during period respondent concluded car damaged. Applicant given adequate opportunity to attack respondent's findings. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(5) |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Taki v Spotless Facility Services (NZ) Ltd [2012] NZERA Auckland 248;Vice-Chancellor of Massey University v Wrigley [2011] ERNZ 138 |
| Number of Pages | 20 |
| PDF File Link: | 2014_NZERA_Auckland_256.pdf [pdf 272 KB] |