| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 377/07 |
| Hearing date | 10 Oct 2007 - 11 Oct 2007 (2 days) |
| Determination date | 03 December 2007 |
| Member | M Urlich |
| Representation | A Sharp ; A Clemow |
| Location | Auckland |
| Parties | Stiekema v Centurion Management Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant told co-worker did not think was right staff should be required to attend weekly devotional sessions and could not understand how director could preach to staff while engaging in “fraudulent transactions” – Co-worker raised concerns about allegations with director (“C”) – Directors undertook investigation and found applicant spread rumours of fraud, amounting to serious misconduct – Applicant claimed raised concerns with director (“P”), which P denied - Final warning issued with stipulation applicant undertake part-time study – Applicant went on sick leave and subsequently resigned – Applicant had not received response about personal grievance issues and had agreed to mediation - Respondent’s inquiry about likely return date reasonable – Breaches of employment agreement (“IEA”) not so serious to make it reasonably foreseeable applicant would resign - No constructive dismissal - UNJUSTIFIED DISADVANTAGE – In alternative claimed disadvantaged by disciplinary process and warning – Investigation process flawed given P and C’s wife’s involvement in outcome and penalty – Respondent could not demonstrate explanations given unbiased consideration – Stipulation to undertake study fell outside ambit of IEA – Flaws significant and vitiated investigation process and outcome – Unjustified disadvantage – Discrimination – Applicant claimed requirement to attend weekly “devotion” meetings an unlawful discriminatory practise - IEA provided attendance compulsory but participation voluntary – Applicant initially “embraced” devotions – However, following one devotion meeting applicant upset by what she claimed director said and no longer participated – Directors told applicant had legal opinion staff could be required to attend but not to participate - On final day applicant raised concern compulsory attendance not “right” – Respondent had no opportunity to address concerns – No disadvantage arose given applicant not required to attend devotions after raised objection – Evidential basis for unjustified action not made out – Authority commented had evidential basis been made out, would have had difficulty accepting could compel staff to attend devotions if attendance contrary to own religious beliefs – No evidence attendance contrary to applicant’s religious belief – Remedies – Applicant spread rumour of improper financial transactions – Conduct inappropriate – Allegations had no reasonable basis – Contributory conduct 50 percent |
| Result | Application dismissed (Unjustified dismissal) ; Application partially granted (Unjustified disadvantage) ; Compensation for humiliation etc ($6,000 reduced to $3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s105(1)(c);Privacy Act 1993 s6;Privacy Act 1993 Principle 7(3) |
| Cases Cited | Air New Zealand Limited v Hudson [2006] 1 ERNZ 415;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Auckland Shop etc Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963; [1985] 2 NZLR 372;PMP Print Ltd v Barnes unreported, D King, 24 September 2004, AA 317/04 |
| Number of Pages | 17 |
| PDF File Link: | aa 377_07.pdf [pdf 73 KB] |