| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 285/06 |
| Hearing date | 6 Jul 2006 |
| Determination date | 11 September 2006 |
| Member | R A Monaghan |
| Representation | T Oldfield ; M Brelsford-Smith & C Plucknett |
| Location | Auckland |
| Parties | White v Challenge Trust |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE – Serious misconduct - Applicant circulated email message which respondent considered to be derisory and undermining of management – Prelude to dismissal involved applicant seeking to organise union meeting – In house newsletter ran article that appeared to be response to applicant’s plan to discuss pay scales at proposed union meeting – Article also presented argument against unionising respondent’s workforce and included number of pointed and adverse comments about union’s methods – Applicant responded to article with email message to staff – Disciplinary investigation into applicant’s actions – Decision made to suspend applicant – Applicant given two hours to seek representation, prepare response and forward or present it at head office which was some distance away – Respondent should have ensured applicant had opportunity to be heard – Authority doubted wisdom of purporting to suspend employee for serious misconduct when disagreement over union and employer rights and responsibilities was at heart of incident causing concern - Suspension unjustified – Compensation for suspension $1,000 - Decision later made to dismiss applicant – Problem for respondent was that although it was justified in being concerned about applicant’s willingness to be openly critical of management, it provoked the conduct which led to the applicant’s dismissal – Was predictable that union supporter would take adverse view of contents of article, and seek to express that view – Respondent should have been alert to link between s4(1)(b) (parties not to mislead or deceive each other) and s4(3) of the Employment Relations Act 2000 (communications of fact or opinion reasonably held) – Section 4(3) was not intended to permit statements like article, which on any reading was undermining the union – Summary dismissal of applicant not action an employer acting fairly and reasonably would have taken in all the circumstances – Contributory conduct 50 percent – Compensation for dismissal $4,000 - Length of service 1 year 11 months – Team leader |
| Result | Application granted ; Reimbursement of lost wages (Quantum to determined reduced by 50 percent) ; Compensation for humiliation etc ($1,000)(Unjustified disadvantage) ; ($8,000 reduced to $4,000)(Unjustified dismissal) ; Costs reserved |
| Statutes | ERA s26 |
| Cases Cited | EDS (New Zealand) Ltd v Shaddox [2004] 1 ERNZ 497;Graham v Airways Corporation of New Zealand Ltd [2005] 1 ERNZ 587 |
| Number of Pages | 7 |
| PDF File Link: | aa 285_06.pdf [pdf 47 KB] |