| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 32/06 |
| Hearing date | 14 Nov 2005 |
| Determination date | 10 February 2006 |
| Member | J Scott |
| Representation | B Quarrie ; M Hanna, R Emery |
| Location | Auckland |
| Parties | Kingi v Responsive Maintenance 2000 Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - While visiting supplier applicant became abusive when disputing nature of supplier's special offer - Similar past conduct to colleagues and supervisors - Respondent dismissed applicant for confronting supplier in inappropriate and intimidating manner while being recognised as respondent's employee, bringing respondent into disrepute, and breaching expectations of employees contained in employment agreement and Code of Conduct - Applicant well aware of nature of special offer - Conduct was egregious" within meaning of Amaltal Fishing v Morunga (cited below), "outstandingly bad or infamous" - Respondent reached sound conclusion that it could not be confident there would be no repetition of similar conduct - Normally failure of decision maker to be present to hear employee's explanation would render dismissal unjustified - However in this case director not a remote decision maker as he had been closely involved in matter from beginning of inquiry - Dismissal justified - Even if this wrong then applicant's contribution disentitled him to remedies - Applicant alleged he went to supplier in private capacity - Applicant there in work time and clearly identified as member of respondent's staff - Nexus between employment and conduct complained of clearly established - UNJUSTIFIED DISADVANTAGE - Suspension - Certain circumstances where safety an issue so could be appropriate to suspend employee even where no statutory or contractual right to do so - Suspension not implemented until 12 days after event - Inconsistent with submission that suspension warranted to ensure safety of others - Applicant entitled to notice of proposal to suspend and opportunity to comment - Unjustified disadvantage - Remedies - Contributory conduct - Applicant's contribution was total and no remedy was to be awarded" |
| Result | Application dismissed (unjustified dismissal) ; Application granted (unjustified disadvantage) ; Costs reserved |
| Statutes | ERA s124 |
| Cases Cited | Airline Stewards and Hostesses of New Zealand IUOW v Air New Zealand Ltd [1990] 3 NZILR 584 ; (1990) ERNZ Sel Cas 985;Amaltal Fishing Co Ltd v Morunga [2002] 1 ERNZ 692;Birss v Secretary of Justice [1984] 1 NZLR 513;Ioane v Waitakere City Council [2003] 1 ERNZ 104;Irvines Freightlines Ltd v Cross [1993] 1 ERNZ 424;NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35;Quinn v Bank of New Zealand [1991] 1 ERNZ 1060;Smith v Christchurch Press Company Ltd [2000] ERNZ 624 ; [2001] 1 NZLR 407;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 ; [2001] 3 NZLR 29 |
| Number of Pages | 7 |
| PDF File Link: | aa 32_06.pdf [pdf 43 KB] |