| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 262/06 |
| Hearing date | 2 May 2006 |
| Determination date | 10 August 2006 |
| Member | J Scott |
| Representation | Matthew Ward-Johnson ; Anthony Drake |
| Location | Auckland |
| Parties | Kendrick v Orica New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Driver reported safety fitting on tanker removed - Video surveillance from previous night showed unidentifiable person wearing red on top of tanker - Gate activity records showed applicant and another employee on site around time of incident - Applicant identified elsewhere on video wearing red - Manager met both men and decided applicant had case to answer - Disciplinary investigation commenced and applicant suspended - Respondent concluded applicant guilty of serious misconduct and dismissed him - Evidence at investigation meeting differed in number of respects from evidence gathered during disciplinary investigation - Critical to Authority's assessment that regarded what known and done by respondent at time decision to dismiss made - Respondent's evidence preferred - No unfairness resulted out of preliminary discussion - Fair and thorough investigation - Extreme hazard posed by tampering meant seriousness of misconduct outweighed any positive features of applicant's employment history - Failure to retain some footage not fatal to finding dismissal justified, but retention would have enhanced process - Not fatal no motive established - Respondent not required to positively identify person on tanker or show conduct complained of occurred, only that following fair and through inquiry it arrived at honest belief misconduct occurred - Conclusion open to respondent and dismissal action that would have been taken by fair and reasonable employer - Dismissal justified - RAISING PERSONAL GRIEVANCE - Grievance not raised in relation to suspension within 90 days and had not sought leave to raise it out of time - No findings made - However, Authority noted had it considered applicant disadvantaged unlikely remedies would have been awarded given circumstances and contribution - Length of service one year ten months - Driver |
| Result | Application dismissed ; Costs reserved |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand Ltd v Hudson (2006) 3 NZELR 155 |
| Number of Pages | 12 |
| PDF File Link: | aa 262_06.pdf [pdf 59 KB] |