| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 81/08 |
| Hearing date | 14 Sep 2007 |
| Determination date | 10 March 2008 |
| Member | A Dumbleton |
| Representation | F McLaren ; D France |
| Location | Auckland |
| Parties | Allen v Transpacific Industries Group (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unfairly dismissed for falsifying timesheet – Co-worker reported to respondent that applicant not at work when time card stated already clocked in (“first incident”) – Next night manager reported applicant’s card clocked in but applicant not on site (“second incident”) – Applicant later telephoned manager saying needed to return home to pick up forgotten keys – Applicant returned to worksite and presented new card stating new time – Applicant suspended and called to disciplinary meeting – Applicant dismissed on grounds that falsified company documents – Applicant claimed respondent’s investigation grossly inadequate – Authority agreed with respondent’s submission that implicit in applicant’s evidence that collaborator involved – Authority noted respondent not required to investigate to point where collaborators identified before concluding timesheet falsified – Respondent argued interviewed two other employees strongly suspected of collusion but insufficient evidence to determine responsibility for clocking applicant in – Authority found in circumstances no clear evidence in form of eye witness – Authority found investigation not full enough considering serious accusation of dishonesty – Authority found conclusion reached because respondent failed to interview material witness (“S”) – Authority found statement by S after applicants dismissal relevant to question of contribution when assessing remedies if unjustified dismissal found – During disciplinary meeting applicant claimed S one of three witnesses present at time claimed was at work site – Respondent spoke to other witnesses but not S – Other witnesses signed statements that could not recall what time saw applicant – Authority found S excluded from inquiry by respondent because of crude hypothesis made about truck travelling time – Authority found even if reasonable to take unscientific approach should not have excluded S from enquiries – Authority saw disturbing feature of S’s exclusion that respondent decided to only interview witnesses who had fallen under strong suspicion of dishonestly clocking in applicant – Authority found impression made by failure to interview S was that respondent afraid to hear S verify applicant’s account – Authority found vagueness of witness evidence meant would be given little weight – Authority concluded inquiry conducted by respondent unfair to applicant because despite applicant providing S’s name, respondent failed to get S’s assistance with inquiry – Dismissal unjustified – REMEDIES – Authority considered S’s evidence in determining contributory conduct of applicant – Authority found S’s account of events perplexing – Authority found given S’s inconsistent evidence that S did not see or talk to applicant at times applicant claimed was at work site – Authority concluded applicant gave false evidence to cover up absence from work site on both first and second incidents – Authority found likely someone else clocked card in for applicant – Found knowingly allowing card to remain unaltered amounted to falsification of company documents – Authority concluded applicant did not contribute to respondent’s failure to interview S – However, would be unjust for respondent to remedy grievance in circumstances – Found degree of contribution for actions during first incident so high no entitlement to remedies – 100 percent contributory conduct - Truck driver |
| Result | Application granted (Dismissal) ; Compensation for humiliation etc (reduced to 0) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Air New Zealand Limited v Hudson [2006] 3 NZELR 155;Airline Stewards and Hostesses Union v Air New Zealand Ltd [1990] 3 NZILR 584;Drummond v Coca-Cola Bottlers NZ Ltd [1995] 2 ERNZ 229;Murphy v Steel Tube NZ Ltd unreported, Couch, J, 16 October 2007, CC 18/07 |
| Number of Pages | 17 |
| PDF File Link: | aa 81_08.pdf [pdf 54 KB] |