| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 9/01 |
| Determination date | 14 February 2001 |
| Member | J Wilson |
| Representation | A Hope ; P Nevill |
| Location | Auckland |
| Parties | Davies v ANZ Banking Group (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Reinstatement sought - Misuse of clothing allowance - Whether decision to dismiss predetermined - Whether breach of rules of natural justice - Applicant knew that conduct considered to be serious misconduct - Decision not predetermined - Right to be heard by decision maker breached - Unjustified dismissal claim made out - Reinstatement not practicable - Contributory conduct - Head teller |
| Abstract | This was a successful unjustified dismissal claim investigated by the Employment Relations Authority.;The applicant had been employed by the respondent for approximately 4 years and at the time of her dismissal held the position of branch Head Teller. As a condition of her employment the applicant was provided with an $800 wardrobe account" for the maintaining of the respondent's corporate uniform. This account was conditional on the applicant adhering to the respondent's policy on the use of the funds.;The applicant was investigated by the respondent for the alleged misuse of funds from her wardrobe account. At a disciplinary meeting the applicant admitted the misuse of funds. At a further meeting following submissions from applicant's counsel of matters to take into account (including past good conduct, the severe consequences of dismissal and an assurance she could be trusted in the future) the applicant was summarily dismissed.;HELD: (1) It was highly improbable that the applicant was unaware of the respondent's policy and that breaching the policy would be treated as serious misconduct. The decision to dismiss the applicant was not predetermined by the respondent's strict adherence to it's policy.;(2) A rule of natural justice was the right to be heard by the decision maker. The respondent breached this rule by delegating the interviewing process to an officer and relying on the officer's report in coming to the decision to dismiss. This amounted to a fundamental flaw in the disciplinary process which rendered the decision unjustifiable.;(3) Whether the applicant had committed serious misconduct was for a fair and reasonable employer to determine. The applicant's position required a higher degree of honesty because it was in a financial institution. The respondent was entitled to find that there had been a loss of trust and confidence. That, combined with the applicant's contribution to the dismissal, meant that it was impractical for the applicant to be reinstated." |
| Result | Application granted ; Application for interim reinstatement dismissed ; Reimbursement of lost wages (3 months reduced to 4 weeks) ; Compensation for humiliation etc ($2,500 reduced to $850) ; Costs reserved |
| Statutes | ERA s127 |
| Cases Cited | Air New Zealand Ltd v Sutherland [1993] 2 ERNZ 10;Association of Marine Aviation & Power Engineers v Tasman Express Line Ltd [1990] 3 NZILR 946;Compass Union of NZ Inc v Foodstuffs (Auckland) Ltd [1992] 3 ERNZ 16;Drummond v Coca-Cola Bottlers NZ [1995] 2 ERNZ 229;Northern Distribution Union v BP Oil NZ Ltd [1992] 3 ERNZ 483;NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35;Orme v Eagle Technology Group Ltd unreported, Goddard CJ, 15 June 1995, WEC 40/95;Piutau v Yuasa JRA Batteries Ltd [1991] 1 ERNZ 520;Quinn v Bank of New Zealand [1991] 1 ERNZ 1060 |
| Number of Pages | 13 |
| PDF File Link: | AA 9_01.pdf [pdf 81 KB] |