| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 153 |
| Hearing date | 6 Aug 2014 |
| Determination date | 02 October 2014 |
| Member | H Doyle |
| Representation | M Thomas, E Fraser ; J Copeland, L Vincent |
| Location | Invercargill |
| Parties | Shanmuganathan v Powernet Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by demotion - Refusal to obey lawful and reasonable instruction - Whether applicant refused to undertake performance review - Offensive language or behaviour - Whether respondent's concerns wider than those put in disciplinary outcome letter - System control manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE: Authority ordered non-publication of parts of psychologist's report not referred to in determination. While respondent could conclude applicant technically failed to follow instruction by not completing self-assessment section of performance review, fair and reasonable employer should have had regard to fact applicant agreed to undertake performance review next day. Fair and reasonable employer could not conclude applicant's initial reluctance to undergo performance review serious misconduct against background of relationship difficulties with manager (P") and psychologist's recommendations about applicant. Fair and reasonable employer could conclude e-mail from applicant to senior managers offensive and unacceptable. Desirable for respondent to take steps to address matters relating to bullying complaint against P but applicant aware would not continue to be managed by P when e-mail sent. Respondent could conclude applicant chose not to follow clear advice from two managers to retract or withdraw e-mail. Applicant breached work instruction not to send e-mail electronically and undermined P's leadership role. Applicant made conscious decision to send e-mail. Fair and reasonable employer could conclude applicant's conduct serious misconduct. Applicant's behaviour since expired final written warning part of circumstances respondent entitled to consider as to disciplinary outcome. Concerns that applicant had lost respect of applicant's team and example applicant set to team when failed to follow instructions in safety sensitive area should have been put to applicant for comment. Applicant unjustifiably disadvantaged by demotion. REMEDIES: 50 per cent contributory conduct. Reinstatement not practicable and reasonable given requirement for respondent to have significant trust and confidence in applicant in leadership position. Respondent to pay applicant $1,875 reimbursement of lost wages. $2,000 compensation appropriate." |
| Result | Application granted ; Contributory conduct (50%) ; Reimbursement of lost wages ($1,875) ; Compensation for humiliation etc ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s103A(4);ERA s103A(5);ERA s124;ERA s125 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Butcher v OCS Ltd [2008] ERNZ 367;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;Shanmuganathan v PowerNet Ltd [2011] NZERA Christchurch 210 |
| Number of Pages | 27 |
| PDF File Link: | 2014_NZERA_Christchurch_153.pdf [pdf 320 KB] |