| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 132/07 |
| Hearing date | 27 Aug 2007 - 28 Aug 2007 (2 days) |
| Determination date | 09 November 2007 |
| Member | H Doyle |
| Representation | C French ; K Spackman |
| Location | Christchurch |
| Parties | Mitchinson v The Chief Executive of the Department of Corrections |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Respondent claimed applicant falsely declared injury during Control and Restraint (C&R) training – Applicant’s doctor (“J”) diagnosed sprain and ACC form completed – Operations manager (“L”) failure to obtain evidence from J significant omission in investigation – Evidence would have led to different conclusions – Investigation focused on what was seen during C&R and applicant’s subsequent actions – Timeline provided to “L” as part of investigation – L questioned other employees about applicant’s intention to participate in C&R – Other employees said no indication applicant not going to participate in C&R – Questions asked of other participants in C&R inconsistent – Unclear why certain statements rejected – Consistent physical evidence of recent injury – Applicant able to provide detail of exercises done during C&R – Interviews undertaken some weeks after C&R – Fair and reasonable employer would have been cautious about reliability of individual recollections of C&R – Analysis of statements undertaken on basis that information of some participants to be believed and other information not to be believed – Only trainer adamant applicant did not participate – Fair and reasonable employer would have considered possibility applicant undertook exercises without trainer seeing – Ambiguity in statements not taken into account, instead interpretation least favourable to applicant accepted – No reason to conclude some witnesses lying – Analysis of participants’ interviews flawed – Evidence favourable to applicant rejected without good reason – Sector manager (“B”) concluded applicant did not make anyone aware of injury and failed to complete work accident report – Fair and reasonable employer faced with conflicting accounts would have realised need for medical information – Applicant claimed advised “V” of injury and intended to obtain accident report – V’s statement, consistent with applicant’s version of events, dismissed – Clear example of closed mind approach to investigation – Significant flaws in investigation – Considered objectively L and B’s minds turned against applicant so favourable matters not considered or investigated and simply dismissed or ignored – Fair and reasonable employer not justified in concluding serious misconduct or that applicant falsely declared work injury – Not completing accident report would not be considered serious misconduct by fair and reasonable employer – Dismissal unjustified – Remedies - Applicant failed to make fact sustained injury clear – Contributory conduct 10 percent - Reinstatement ordered – Prison instructor |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages ($53,551.13 reduced to $48,196.02)(48 weeks) ; Compensation for humiliation etc ($20,000 reduced to $18,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Air New Zealand Limited v Andrea Hudson [2006] 1 ERNZ 415;Hillier v Lyttelton Borough Council (1987) 1 NZELC |
| Number of Pages | 30 |
| PDF File Link: | ca 132_07.pdf [pdf 96 KB] |