| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 256/06 |
| Hearing date | 9 May 2006 |
| Determination date | 04 August 2006 |
| Member | R A Monaghan |
| Representation | Loela Goffin ; Rachel Steel |
| Location | Auckland |
| Parties | James v John Webster Chief Executive Officer Unitec Institute of Technology |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant introduced restructuring proposal at respondent - Tutors formed group to oppose it - Get well" card circulated in academic community - Claimed respondent "sick" institution for employing applicant and listed allegations about him - Card prompted investigation - Applicant suspended - Respondent dismissed on basis applicant: (1) Failed to discharge responsible stewardship of resources when waived fees of two students failing to discharge; (2) pursued personal relationship with student ("C") after waiving her fees; (3) and (4) bullied or threatened colleagues in two incidents - Not unfair investigation uncovered information forming ground of dismissal - Reasonably concluded C more credible witness - Applicant previously received informal warnings and counselling about "inappropriate" behaviour - Not case where prior disciplinary warnings directly invoked to support dismissal - Respondent not estopped from considering employment history - No failure to properly investigate actions of group - No evidence group set on undermining applicant or securing his dismissal - Claimed respondent failed to provide documents in breach of Privacy Act 1993 - No jurisdiction to determine such breaches - No evidence relevant information not put to applicant - Grounds (1) and (2) serious misconduct justifying dismissal - (1) Reasonable conclusion waiver of fees deeply impaired or destructive of trust and confidence and failure to follow procedure would have detrimental effect on respondent - Conduct may have brought respondent into disrepute - (2) Pursuing personal relationship not serious misconduct in itself - However, it came at end of course of conduct following waiver of fees - Reasonable conclusion conduct capable of bringing respondent into disrepute and of amounting to serious misconduct under disciplinary policy - Grounds (3) and (4) less than satisfactory conduct but reinforced reasonableness of respondent's overall loss of trust and confidence - In all circumstances dismissal open to respondent - Dismissal justified - UNJUSTIFIED DISADVANTAGE - Suspension enabled investigation to proceed without ongoing conflict - Applicant warned of possibility of suspension and reasons for it before decision made - Suspension justified - No disadvantage on any grounds submitted - Length of service nine years - School department head" |
| Result | Application dismissed ; Costs reserved |
| Statutes | ERA s103(1), ERA s103(1)(b), Privacy Act 1993 |
| Cases Cited | Graham v Airways Corporation of New Zealand Limited [2005] 1 ERNZ 587;Northern Distribution Union v BP Oil NZ Limited [1992] 3 ERNZ 483, 487;Poole v Horticulture & Food Research Institute of NZ Limited [2002] ERNZ 869;Singh v Sherildee Holdings Limited unreported, Couch J, 22 September 2005, AC 53/05 |
| Number of Pages | 19 |
| PDF File Link: | aa 256_06.pdf [pdf 85 KB] |