| Summary |
PRACTICE AND PROCEDURE - Before investigation, applicant's lawyer advised applicant would not be giving evidence to Authority - Authority Minute advised investigation would not proceed without hearing from applicant - Applicant provided affidavit but refused to take oath or affirmation, give live voice" evidence, or answer questions from Authority or respondent's representative - UNJUSTIFIED DISMISSAL - Serious misconduct - Dismissed for taking cell phone from business while delivering mail - Applicant claimed picked up phone inadvertently - After preliminary inquiries respondent formed view serious misconduct might have occurred and began formal disciplinary process - Applicant argued preliminary meeting unfair as no notice of meeting or opportunity to seek assistance, and support person told to remain silent - Respondent used information gathered at preliminary meeting to justify commencement of disciplinary proceedings, not make decision about conduct - Process after first meeting fair and competent - Applicant contended respondent breached New Zealand Bill of Rights Act 1990 ("NZBORA") by questioning her when matter could be subject of criminal prosecution - Submitted entitled to rely on right to remain silent, not just to prevent prejudice in any possible criminal proceedings, but also to prevent prejudice to her employment as respondent a state-owned enterprise bound by NZBORA - Argument rejected because although disciplinary proceedings could be stayed where employee invoked right to silence, purpose of stay was to protect against self incrimination in relation to future criminal proceedings, not in relation to employment in general or disciplinary process in particular - In any event, applicant had not invoked right to silence - Authority aware of no authority requiring employers to caution employees - Authority viewed video footage from business and agreed entirely with respondent's assessment - That applicant deliberately took phone established to very high standard - Conclusion and decision to dismiss reasonable - Dismissal justified - Length of service 30 years - Postie" |