| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 3/01 |
| Determination date | 11 January 2001 |
| Member | J Wilson |
| Representation | J Parlane ; J Copeland |
| Location | Auckland |
| Parties | Kimber v New Zealand Fire Service |
| Summary | INTERIM INJUNCTION - Serious misconduct - Application to prevent disciplinary interview from proceeding - Whether contrary to natural justice - Not role of Authority to conduct interview - No evidence of predetermination - Meeting was part of normal disciplinary process - Field trainer |
| Abstract | This was an unsuccessful application for an interim injunction restraining the respondent from proceeding with a disciplinary investigation.;The applicant was employed by the respondent as a field trainer and was the instructor in charge of a Basic Fire Fighters training course. The respondent received a report detailing an investigation completed as a result of complaints laid concerning the applicant's management of the course.;The respondent wrote to the applicant stating that the report indicated there was a breach of the respondent's standards of conduct and requested that the applicant attend a disciplinary interview so that he could present his views on the matters raised by the report. The respondent warned that the meeting could instigate disciplinary action against the applicant and that he could be issued with a warning or dismissed as a result. The applicant sought to restrain the respondent from conducting the interview.;HELD: (1) Equitable discretions were to be exercised by taking into account and giving proper weight to all relevant matters which tended towards demonstrating the justice or injustice of granting a remedy and by weighing them against each other in order to decide whether the relief should be granted or refused. The Employment Relations Act 2000 did not change this requirement.;(2) An injunction would restrain the employer from carrying out their right to continue and complete an investigation as part of their disciplinary process. Such an injunction should not be issued without strong evidence that it would be necessary to protect the applicant's legal rights. The proposed meeting was part of the normal disciplinary process and the respondent had not prejudged the outcome of that process. The action the applicant was seeking to prevent was clearly not illegal.;(3) To require the respondent to advise the applicant of their intentions towards him prior to the meeting would require the respondent to prejudge what the applicant might say in his own defence. To make such an order would be contrary to the principles of natural justice.;(4) It was not the role of the Authority to make judgments as to whether disciplinary action should or should not be taken. Until the respondent had completed its investigation and made a decision the Authority had no role to play, it could not take over the role of employer. |
| Result | Application dismissed ; Costs reserved |
| Statutes | ERA s3;ERA s102;ERA s160;ERA s161;ERA s162;Harassment Act 1997 |
| Cases Cited | Armourguard Rescue Services Ltd v NZ Public Service Association [1989] 2 NZILR 405;Kumar v Elizabeth Memorial Home Ltd [1998] 2 ERNZ 61;Russell v Wanganui City College [1998] 3 ERNZ 1076 |
| Number of Pages | 10 |
| PDF File Link: | aa 3_01.pdf [pdf 48 KB] |