| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 3/00 |
| Determination date | 11 December 2000 |
| Member | A Dumbleton |
| Representation | PA Caisley ; RL Towner |
| Location | Auckland |
| Parties | Fesolai v Air New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Obtained confidential data for personal use - Privacy Act 1993 - Breach of employment contract and company code - Whether wilful conduct - Breach of trust and confidence established - Decision open to employer |
| Abstract | This was an unsuccessful unjustified dismissal claim investigated by the Employment Relations Authority.;The applicant was employed by the respondent airline for 11 years. To help a close relative he sought to have a passenger flying on the airline carry a package to the United States and hand it to his relative on arrival. There was no suggestion that the package contained any illegal substance. The applicant obtained access to the passenger list and searched it for a flight from Auckland to a city near where his relative lived and took the name and telephone number of a suitable passenger at random. He then contacted the passenger by phone and made his request. The passenger rejected the applicant's approach and complained in writing to the respondent.;Following an interview, the applicant was advised he was dismissed with immediate effect for obtaining and using confidential customer data for personal use. The respondent alleged the applicant's conduct was a wilful breach of the Privacy Act 1993, the Company Code of Conduct and his employment contract.;HELD: (1) The applicant intended to act as he did and it was his actions that caused the employer to lose trust and confidence. Express provisions in the employment contract and the code of conduct made it clear that confidential information was not to be used for improper purposes.;(2) As well as maintaining its own standard for maintaining good customer relations the employer was obliged to comply with the law, namely the Privacy Act 1993, and to see that its employees did so as well. In those circumstances, including the position of responsibility and leadership held by the applicant, the employer quite reasonably viewed his actions as being destructive of the trust and confidence required.;(3) As a matter of fact and degree, the applicant's conduct was capable of amounting to serious misconduct and the respondent was justified in treating it as such. Although motive and intent on the part of the applicant were factors to be taken into account, in the end the question was whether his actions seriously undermined or eroded the trust and confidence that his employer necessarily had to have and be able to keep in him. |
| Result | Application dismissed ; Costs reserved |
| Statutes | ERA s124;ERA s160(3);Privacy Act 1993;Privacy Act 1993 s4;Privacy Act 1993 s126;Privacy Act 1993 Principle 10 |
| Cases Cited | Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;Northern Distribution Union v BP Oil NZ Ltd [1992] 3 ERNZ 483;Read v Air New Zealand Ltd [1991] 3 ERNZ 139 |
| Number of Pages | 7 |
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