| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2016] NZERA Wellington 24 |
| Hearing date | 11-14 Aug 2015 (4 days) |
| Determination date | 19 February 2016 |
| Member | Trish MacKinnon |
| Representation | J Lawrie ; H Kynaston, J Howes |
| Location | Wellington |
| Parties | A v R |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Misconduct – Applicant claimed unjustifiably disadvantaged by suspension – Whether applicant suspended or on special leave – Applicant claimed unjustifiably dismissed by respondent – Assault – COUNTERCLAIM – ESTOPPEL – Respondent claimed applicant estopped from claiming unjustified dismissal |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Dismissal claim subsumed unjustified disadvantage claim. Applicant was on special leave by agreement. No unjustified disadvantage. Respondent’s decision maker not separated from investigative process. Respondent failed to obtain evidence on key issues and did not properly investigate statements made by key witnesses. Respondent’s investigation process not fair and reasonable. Respondent could not rely on findings to dismiss applicant. Dismissal unjustified. Parties directed to mediation. REMEDIES: No contributory conduct. Reinstatement ordered. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $10,000 compensation for humiliation etc appropriate.;COUNTERCLAIM – ESTOPPEL: Respondent effectively dismissed applicant before applicant’s resignation. Applicant not estopped by resignation from unjustified dismissal claim. Application dismissed. |
| Result | Application granted (unjustified dismissal) ; Orders made ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($10,000) ; Application dismissed (unjustified disadvantage)(counterclaim-estoppel) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(5);ERA s122;ERA s123(1)(a);ERA s123(1)(b);ERA s123(1)(c)(i);ERA s125;Police Act 1958 s128 |
| Cases Cited | Commissioner of Police v Hawkins [2009] NZCA 209, [2009] 3 NZLR 381;Harris v TSNZ Pulp and Paper Maintenance Ltd [2015] NZEmpC 43;Clark v NCR (NZ) Corporation [2006] ERNZ 401 (EmpC);New Zealand (with exceptions) Food Processing IUOW v Unilever New Zealand (1990) ERNZ Sel Cas 582 (LC);Lewis v Howick College Board of Trustees [2010] NZCA 320, (2010) 7 NZELR 539;New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1994] 2 ERNZ 414 (CA);Angus v Ports of Auckland Ltd [2011] NZEmpC 160, [2011] ERNZ 466 |
| Number of Pages | 25 |
| PDF File Link: | 2016_NZERA_Wellington_24.pdf [pdf 303 KB] |