| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 414 |
| Hearing date | 26 - 27 Aug 2014 |
| Determination date | 09 October 2014 |
| Member | A Fitzgibbon |
| Representation | S Hood ; Legal representative of the respondent |
| Location | Hamilton |
| Parties | A v The Company |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably disadvantaged by suspension and respondent conducting disciplinary process at same time as Police criminal investigation - Applicant claimed unjustifiably dismissed by respondent - Police investigation - Search warrants - Production order - Right to fair trial - Police decided not to lay charges after Authority investigation meeting - Local business manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Authority ordered non-publication of parties' identities. Respondent's failure to provide applicant with copy of file note made of suspension meeting unfortunate but did not render suspension unjustified. Meeting to discuss suspension held at Police station after applicant finished five hour Police interview. Respondent had real and serious business concerns but could have delayed meeting even for short time to allow applicant to understand situation and obtain support. Applicant not given reasonable opportunity to respond to respondent's concerns before suspension. Applicant unjustifiably disadvantaged by suspension. Respondent refocused disciplinary investigation in order not to infringe upon applicant's right to silence but still direct relationship between Police investigations and respondent's employment investigation. Applicant put in impossible position. No criminal charges laid in period leading up to applicant's dismissal. Applicant unjustifiably disadvantaged by continuation of disciplinary process into applicant's conduct while Police conducted criminal investigation. Respondent placing applicant on sick leave while suspended on pay tactic to put financial pressure on applicant to participate in disciplinary process. Applicant dismissed because of Police investigations. Respondent considered some matters that parties agreed would not be part of refocused disciplinary investigation. Some issues not raised with applicant prior to respondent reaching preliminary view. Dismissal unjustified. REMEDIES: No contributory conduct. Reinstatement ordered. Authority noted respondent now able to conduct investigation without infringing applicant's right to silence. $2,000 compensation appropriate for unjustified disadvantage. |
| Result | Applications granted ; Reinstatement ordered ; Compensation for humiliation etc ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4(1A)(c);ERA s103(1)(b);ERA s103A;ERA s103A(3);ERA s124;Official Information Act 1982;Search and Surveillance Act 2012 |
| Cases Cited | Vice-Chancellor of Massey University v Wrigley [2011] ERNZ 138;Wackrow v Fonterra Co-operative Group Ltd [2004] 1 ERNZ 350 |
| Number of Pages | 19 |
| PDF File Link: | 2014_NZERA_Auckland_414.pdf [pdf 296 KB] |