| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 65/07 |
| Hearing date | 15 Feb 2007 - 16 Feb 2007 (2 days) |
| Determination date | 27 April 2007 |
| Member | G J Wood |
| Representation | B Buckett ; J Holden |
| Location | Wellington |
| Parties | Tawhiwhirangi v The Chief Executive, Department of Corrections |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE - Serious Misconduct – Dismissed for assaulting prisoner – Applicant claimed prisoner asked for contraband and was refused - Prisoner injured during ensuing “control and restraint” - Alleged assaulted by applicant - Preliminary investigation found assault probable and full investigation ordered – Applicant suspended during investigation – Security video footage (“SMS”) examined – Investigation found applicant breached code of conduct and allegation of misconduct could be upheld – Given opportunity to respond, however delays upheld process – Found guilty of serious misconduct – Delays in investigation predominantly applicant’s fault – Authority found suspension justified – Applicant should have sought assistance instead of using physical and verbal directions at time of incident – Behaviour not consistent with procedures – However, SMS footage inconclusive – Evidence of physical contact in context not sufficient to justify dismissal – Unreasonably concluded assault justified summary dismissal – Finding not open to respondent - Fair and reasonable employer would have given benefit of doubt – Dismissal unjustified - Remedies – Applicant reinstated - Mediation directed to assist reintegration process in workplace – $10,000 compensation would have been appropriate, however, given contributory factors, reduced to $5,000 – Award not stating level of contribution 50 percent, because applicant reinstated and no deductions made from lost remuneration - Corrections officer |
| Result | Application granted (Dismissal) ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($10,000 reduced to $5,000) ; Reinstatement ordered ; Parties directed to mediation ; Application dismissed (Unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Managh (t/a Managh & Associates and Caf� Down Under Ltd) v Wallington [1998] 2;ERNZ 337;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 19 |
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