| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 140/07 |
| Hearing date | 7 May 2007 |
| Determination date | 07 May 2007 |
| Member | J Scott |
| Representation | S Scott ; J Parlane |
| Location | Auckland |
| Parties | Ryan & Anor v Waipa Youth & Anor |
| Other Parties | Paekau ; Whanau Trust |
| Summary | UNJUSTIFIED DISADVANTAGE – Serious misconduct - Following an investigation, first and second applicants (“R”) and (“P”) suspended and dismissed for alleged disobedience, dishonesty, and using work time and materials for personal use - No provision to suspend in employment agreements - Respondent failed to establish situation existed to justify immediate suspensions - No opportunity to comment or inquiries made of applicants' prior to suspensions – P’s suspension completely unfounded - Fair and reasonable employer would have consulted applicants before suspending - Wholly deficient process – Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Except for two grounds of dismissal, misconduct not established – Applicants spent unreasonable amount of work time on personal and family activities - Evidence suggested R challenging and poor manager - R created files in names of real individuals without their knowledge or consent - Constituted misconduct going to heart of professional and ethical obligations as counsellor, and those to respondent - Respondent erred by not putting specific allegations about conduct to applicants - Entire dismissal process dogged by bias and predetermination – Actions not those of fair and reasonable employer - Dismissals unjustified – Remedies - Had investigation been fair, respondent would have concluded R guilty of serious misconduct justifying dismissal – No lost remuneration due to contributory conduct – Appalling process treated P as part of “job lot” with R – P's contributory conduct 25 percent – ARREARS OF WAGES AND HOLIDAY PAY - P's wages and holiday pay due and owing - COSTS - 3½ day investigation meeting - Respondent's failure to follow directions of Authority reflected in costs awards - Failures added to time and difficulties of investigation - Respondent refused to attend mediation - Matter should have been disposed of in two days - Respondent to pay $10,000 contribution to costs – Manager/Counsellor and Administrator |
| Result | Application granted (First applicant) ; Compensation for humiliation etc ($2,500)(Unjustified disadvantage) ; ($10,000)(Unjustified dismissal) ; Application granted (Second applicant) ; Reimbursement of lost wages (Quantum to be determined reduced by 25%)(3 months) ; Arrears of wages and holiday pay (Quantum to be determined) ; Compensation for humiliation etc ($3,500)(Unjustified disadvantage) ; ($12,500 reduced to $9375)(Unjustified dismissal) ; Costs in favour of applicants ($10,000) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103(1)(a);ERA s103(1)(b);ERA 124 |
| Cases Cited | Air New Zealand v Hudson [2006] ERNZ 415;Association of Staff in Tertiary Education v Northland Polytechnic Council [1992] 2 ERNZ 943;Benton v Miller & Poulgrain Ltd [2005] 1 NZLR 66 (CA);Birss v Secretary for Justice [1984] 1 NZLR 513 (CA);Graham v Airways Corporation of New Zealand Ltd [2005] 1 ERNZ 587;Northern Hotel etc IUOW v Tokaanu-Turangi RSA Club (Inc) [1989] 2 NZILR 955;NZ Educational Institute v Board of Trustees of Auckland Normal Intermediate [1992] 3 ERNZ 197;NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 ; (1990) ERNZ Sel Cas 582;Telecom NZ Ltd v Nutter [2004] 1 ERNZ 315;The Chief Executive of Unitec Institute of Technology v Henderson unreported, Colgan CJ, 19 March 2007, AC 12/07;Waitakere City Council v Ioane [2004] 2 ERNZ 194 |
| Number of Pages | 17 |
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