| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 176 |
| Hearing date | 21 to 23 Mar 2016 (3 days) |
| Determination date | 07 June 2016 |
| Member | Robin Arthur |
| Representation | G Macdonald ; S Turner, J Manoa |
| Location | Auckland |
| Parties | Tuilaepa v The Chief Executive of the Ministry of Social Development |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Assault – Social worker |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Respondent failed to sufficiently investigate allegations before dismissal. Deficiencies in investigative and decision-making processes resulted in finding not reasonably founded. Respondent did not thoroughly assess whether circumstances supported explanation. Fair and reasonable employer would conclude action excusable as self-defence. Applicant did not have access to information on basis of decision and no opportunity to respond. Dismissal unjustified. REMEDIES: Applicant’s failure to disengage constituted blameworthy conduct. 100 per cent contributory conduct. Applicant had strong support from other staff, likely to be more attentive and careful with procedures, size of workplace allowed flexibility. Reinstatement ordered subject to conditions. |
| Result | Application granted ; Contributory conduct (100%) ; Reinstatement ordered ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Children, Young Persons, and Their Families (Residential Care) Regulations 1996 r22;Children, Young Persons, and Their Families Act 1989 s238(1)(d);Corrections Act 2004 s83;Crimes Act 1961 s196;ERA s103A;ERA s123(1)(a);ERA s123(1)(c)(i);ERA s124;ERA s125;ERA s174E;ERA Second Schedule cl10;Vulnerable Children (Requirements for Safety Checks of Children’s Workers) Regulations 2015;Vulnerable Children Act 2014 s26;Vulnerable Children Act 2014 s28;Vulnerable Children Act 2014 s31 |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] NZEmpC 160, [2011] ERNZ 466;Chief Executive of the Department of Corrections v Tawhiwhirangi [2007] ERNZ 610 (EmpC);De Bruin v Canterbury District Health Board [2012] NZEmpC 110, [2012] ERNZ 431;Fagotti v Acme & Co Ltd [2015] NZEmpC 135;Harris v Warehouse Ltd [2014] NZEmpC 188, [2014] ERNZ 480;New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1994] 2 ERNZ 414 (CA);PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC);Re Shepherd HPDT 299/Nur09/137P, 3 May 2010;Ritchies Transport Holdings Ltd v Merennage [2015] NZEmpC 198;Shepherd v Whanganui District Health Board ERA Wellington File No 5131908, 4 August 2009;Tuilaepa v The Chief Executive of the Ministry of Social Development [2015] NZERA Auckland 401;Whanganui College Board of Trustees v Lewis [2000] 1 ERNZ 397 (CA) |
| Number of Pages | 38 |
| PDF File Link: | 2016_NZERA_Auckland_176.pdf [pdf 476 KB] |