| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 136/07 |
| Hearing date | 8 Feb 2007 |
| Determination date | 01 May 2007 |
| Member | Y S Oldfield |
| Representation | S Mitchell ; A Shaw |
| Location | Auckland |
| Parties | McNeill v Solid Energy New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant dismissed for falsifying sick leave in breach of contractual obligations and policy - Previously warned for taking unauthorised leave - Applicant called in sick and went on pre-booked two day fishing trip - Applicant union delegate - Represented co-worker during disciplinary process regarding co-worker's absence without leave during same fishing trip - Applicant did not mention had been on trip - Manager heard rumours, commenced inquiry and suspended applicant - Concluded applicant should have consulted shift manager or made himself available for alternative duties - Applicant confirmed investigation thorough, but claimed not open on evidence to conclude he falsified a sick leave - Claimed did not think did anything wrong as was just fishing whilst sick - Also believed being delegate affected way treated in investigation - Claimed when applicant arranged for friend to call in sick for him was serious misconduct, and false declaration" under collective employment agreement ("CEA") - Respondent entitled to conclude applicant misled it by having friend call in sick on second day - Asked friend to say something possibly false and made himself unavailable for work - CEA provided unlimited sick leave and respondent to work with union to resolve attendance issues - Given absences in excess of minimum statutory entitlement, absences governed by CEA - Conduct misleading or fraudulent misuse of sick leave - In first instance, poor attendance from misuse of sick leave less than serious misconduct in CEA - No evidence respondent attempted to resolve attendance issues prior to dismissal - Misuse could not be elevated to serious misconduct without exhausting CEA procedures on poor attendance - Did not apply provisions and failed to use procedures - Fair and reasonable employer would not have dismissed until had done so - Dismissal unjustified - Remedies - Contribution at higher end of scale - Reinstatement totally impracticable - Contributory conduct 50 percent - Mine electrician" |
| Result | Application granted ; Reimbursement of lost wages (3 months reduced to 6 weeks)(Quantum to be determined by parties) ; Compensation for humiliation etc ($10,000 reduced to $5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Holidays Act 2003 s64;Holidays Act 2003 s68 |
| Number of Pages | 6 |
| PDF File Link: | aa 136_07.pdf [pdf 44 KB] |