| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 168 |
| Hearing date | 9 Mar 2015 - 11 March 2015 (3 days) |
| Determination date | 11 June 2015 |
| Member | TG Tetitaha |
| Representation | W Reid ; G Bingham |
| Location | Tauranga |
| Parties | Cliff v The Bay of Plenty District Health Board |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Other staff complained about applicant’s behaviour – Applicant had raised claims of harassment by manager, leading to disciplinary meetings - Whether applicant’s lack of insight regarding behaviour and covert recording of meetings constituted serious misconduct – Whether applicant dismissed after applicant refused to accept final written warning and performance plan - Nurse |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISMISSAL: Applicant’s lack of insight about effects of behaviour on other staff not serious misconduct and only warranted corrective action. Applicant’s covert recording of meetings constituted misleading and deceptive behaviour. Recordings breached trust and confidence, and probably good faith, but were not serious misconduct. Recordings did not destroy trust and confidence between parties. Fair and reasonable employer would not have concluded applicant’s behaviour serious misconduct. Respondent failed to carry out sufficient investigation into disciplinary concerns. Respondent appointed investigator about whom applicant had previously made complaint. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Permanent reinstatement not practicable or reasonable. Respondent to pay applicant equivalent of half week’s wages reimbursement of lost wages (quantum to be determined). $1,250 compensation appropriate. |
| Result | Application granted ; Contributory conduct (50%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc. ($1,250) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(3)(a);ERA s124;ERA s125;ERA s128 |
| Cases Cited | Allen v TransPacific Industries Group Ltd (t/a Media Smart Ltd) (2009) 6 NZELR 530;Carter Holt Harvey v Yukich [2005] ERNZ 300 (CA);Finau v Carter Holt Building Supplies [1993] 2 ERNZ 971 (EmpC) ;;Goodfellow v Building Connexion Ltd t/a ITM Building Centre [2010] NZEmpC 82;Hallwright v Forsyth Barr Ltd [2013] NZEmpC 202, [2013] ERNZ 553;Harder v Proceedings Commissioner [2000] 3 NZLR 80 (CA);Isaac v Chief Executive of the Ministry of Social Development ERA Auckland AA200/08, 5 June 2008;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311 (EmpC);Northern Distribution Union v BP Oil NZ Ltd [1992] 3 ERNZ 483 (CA) ;;Paykel Ltd v Ahlfeld [1993] 1 ERNZ 334 (EmpC);Salt v Fell [2008] NZCA 128, [2008] 3 NZLR 193;Talbot v Air New Zealand [1996] 1 NZLR 414 (CA);Telecom South Ltd v Post Office Union ( Inc) [1992] 1 NZLR 275 (CA) |
| Number of Pages | 20 |
| PDF File Link: | 2015_NZERA_Auckland_168.pdf [pdf 274 KB] |