| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 405/05 |
| Hearing date | 29 Jul 2005 |
| Determination date | 11 October 2005 |
| Member | A Dumbleton |
| Representation | M Young ; P Shaw |
| Location | Auckland |
| Parties | Milton v Vodafone New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant summarily dismissed in June 2002 for using drug pure methamphetamine (or P") in workplace during rostered hours - Applicant's allegations of intimidation and not being allowed representation during disciplinary meeting not made out - No evidence to support applicant's belief that respondent improperly disclosed details of dismissal to new employer - At time of drug use was not employee of respondent but had been working for temping agency engaged by respondent - Respondent did not appreciate applicant's non-employee status at time of dismissal - At time of drug use applicant did not owe duties of employee to respondent - Conduct of employee before employment relationship began capable of providing grounds for dismissal where sufficient nexus between conduct and bonds of trust and confidence in employment relationship - Direct link between misconduct and legitimate interests of respondent - Justification test s103A ERA introduced in December 2004 - Language of s103A addressed to Authority at time of investigating and determining grievance - Had to be applied even when dismissal occurred before December 2004 - New test did not require existence of employment relationship at time misconduct committed - Question not whether fair and reasonable employer would have avoided making mistake about applicant's employment status, but whether mistake material to decision making - Real concern was nature of misconduct rather than capacity or standing at time - Respondent's actions were what fair and reasonable employer would have done in all material circumstances - Even if s103A did not apply to pre-December 2004 dismissals, previous justification test would have produced same result - Dismissal justified - Call centre operator" |
| Result | Application dismissed ; Costs reserved |
| Statutes | ERA s103A |
| Number of Pages | 5 |
| PDF File Link: | aa 405_05.pdf [pdf 31 KB] |