| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 6/00 |
| Determination date | 20 December 2000 |
| Member | J Wilson |
| Representation | A Hope ; P Nevill |
| Location | Auckland |
| Parties | Davies v ANZ Banking Group (NZ) Ltd |
| Summary | INTERIM REINSTATEMENT - Unjustified dismissal - Serious misconduct - Misuse of clothing allowance - Arguable case established - No alternative lesser remedy available - Balance of convenience favoured applicant - Overall justice against reinstatement - Substantive hearing available within short time - Head teller |
| Abstract | This was an unsuccessful application for interim reinstatement.;The applicant had been employed by the respondent for approximately 4 years and at the time of her dismissal held the position of branch Head Teller. As a condition of her employment the applicant was provided with an $800 wardrobe account" for the maintenance of the respondent's corporate uniform. The applicant was investigated by the respondent for the alleged misuse of funds from her wardrobe account. At a disciplinary meeting the applicant admitted the misuse of funds. At a further meeting following submissions from applicant's counsel of matters to take into account (including past good conduct, the severe consequences of dismissal and an assurance she could be trusted in the future) the applicant was summarily dismissed.;HELD: (1) There was an arguable case. There was clearly a dispute between the parties and areas where the respondent acted inappropriately.;(2) There was no adequate alternative remedy other than reinstatement available to the applicant. The applicant's dismissal would have a dramatic effect on both her career in the banking industry and her ability to find alternative employment. Should the final outcome of the case be a determination that she had a personal grievance anything less than reinstatement could not offset the loss of her position.;(3) The balance of convenience favoured the applicant. The dismissal would cause severe hardship to the applicant and her family. While it was accepted that due to the nature of the employment and the admitted misconduct it was difficult for the respondent to reinstate, the respondent was a large employer with financial resources and flexibility.;(4) The overall justice did not favour the applicant's reinstatement. The relative strengths and weaknesses of the respective cases could be assessed. The applicant did not have a strong case. It may prove that there were deficiencies in the respondent's process but following proper inquiry of proven misconduct, it was for the employer to decide the level of penalty warranted. Taking into account the relatively short period before a final determination could be made, the undertaking not to fill the position, and the relative merits, the overall justice would not be served by interim reinstatement." |
| Result | Application dismissed ; Costs reserved |
| Statutes | ERA s125;ERA s126;ERA s127(1);ERA s127(2);ERA s127(4) |
| Cases Cited | Crisp v 3 Guys Ltd unreported, IM Davidson, 8 June 1994, AT 176/94;Madar v P & O Services (NZ) Ltd [1999] 2 ERNZ 174;Northern Distribution Union v BP Oil NZ Ltd [1992] 3 ERNZ 483;Northern Distribution Union v Foodtown Supermarkets Ltd [1990] 1 NZILR 243 |
| Number of Pages | 6 |
| PDF File Link: | PDF file not available for download, please contact us to request a copy. |