| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 406 |
| Hearing date | 25-26 Aug 2014 |
| Determination date | 06 October 2014 |
| Member | E Robinson |
| Representation | H White ; G Mayes, K Amodeo |
| Location | Auckland |
| Parties | Merennage v Ritchies Transport Holdings Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably disadvantaged by unpaid suspension and unjustifiably dismissed by respondent - Whether applicant sexually assaulted passenger on bus - Whether applicant attempted to obstruct or deflect investigation by visiting former employer where applicant had contact with complainant - Whether applicant failed to collect or record fares when complainant boarded bus - Applicant suspended on pay initially - Applicant suspended without pay when licence suspended after criminal charges laid - Police investigation - Applicant acquitted of charges - Bus driver |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: No contractual right to suspend applicant without pay. Respondent could have terminated applicant's employment after licence suspended but chose not to. Failure to progress investigation, or tell applicant investigation not to be progressed, not actions of fair and reasonable employer. No informed consent from applicant to unpaid suspension. Applicant unjustifiably disadvantaged by unpaid suspension. Allegation by complainant against applicant lacked certainty as to time and date. Respondent not entitled to draw adverse inference from fact applicant did not answer questions during disciplinary meeting on lawyer's advice. Respondent made no contact with applicant during lengthy period of unpaid suspension and failed to advise applicant investigation placed on hold pending outcome of criminal process. Respondent had pre-determined view that applicant guilty of sexual assault allegation. Applicant breached agreement of confidentiality by speaking to former employer but insufficient evidence to support intention to obstruct respondent's investigation. Respondent unable to consider failure to collect or record fares as serious misconduct given respondent's inability to verify allegation. No full and fair investigation into misconduct allegations. Dismissal unjustified. REMEDIES: Duty of good faith required applicant to inform respondent of alternative employment when restored to full pay. 33 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages for unjustified disadvantage, quantum to be determined. Leave reserved for parties to return to Authority if unable to agree amount. Respondent to pay applicant $13,866 reimbursement of lost wages for unjustified dismissal. $6,666 compensation appropriate. |
| Result | Applications granted ; Contributory conduct (33.3%) ; Reimbursement of lost wages (quantum to be determined)(unjustified disadvantage)($13,866.66)(unjustified dismissal) ; Compensation for humiliation etc ($6,666.66) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s103A(3);ERA s124;ERA s128(3) |
| Cases Cited | Birss v Secretary for Justice [1984] 1 NZLR 513;Chief Executive of the Ministry of Maori Development v Travers-Jones [2003] 1 ERNZ 174;Rack v Salters Cartage Ltd unreported, Colgan J, 20 February 2002, AC7/02 |
| Number of Pages | 25 |
| PDF File Link: | 2014_NZERA_Auckland_406.pdf [pdf 355 KB] |