| Summary |
UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant charged with theft and receiving stolen property - Offences dated prior to employment - In recruitment process, applicant not required to disclose criminal convictions or pending criminal Court appearances – During employment applicant advised respondent of upcoming Court appearance – Applicant claimed encouraged by immediate manager and works manager not to resign – Applicant pleaded guilty – Appealed sentence of imprisonment and remanded on bail – Conviction, prior convictions and sentence reported in newspaper – Non-custodial sentence since imposed - Compliance Manager (“E”) advised applicant that instituting disciplinary investigation – Applicant suspended for serious breach of code of conduct – Disciplinary meeting held – Dismissal letter stated lost trust and confidence in applicant due to dishonesty convictions, emphasising importance of honesty in quality assurance officer role, as opposed to ordinary meat worker – Applicant appointed without inquiry into extensive criminal history due to failures in respondent’s recruitment system – Authority found likely respondent would not have appointed applicant had it been aware of criminal history – Applicant not up front, relying on respondent’s failure to inquire about convictions – No general duty on negotiating parties to reveal material facts voluntarily – Not yet in employment relationship so duty of good faith not applicable – Not illegal, but failure to disclose may be ethically unworthy – Applicant claimed unreasonable delay in disciplinary investigation - Authority found number of points after applicant put respondent on notice when could have commenced disciplinary investigation – Respondent took no steps until sentencing appearance – E claimed deferred disciplinary investigation until “full picture” known – Authority found delay did not prejudice applicant – Delay not unreasonable – Applicant claimed decision-maker in disciplinary investigation, E, biased – E disputed applicant’s witnesses evidence of bias – Bias allegations focused on events prior to termination of employment – However, if E demonstrably “had it in for” applicant prior to dismissal, possibility of bias must be considered – Also found pre-determination suggested by E’s reaction to discovering convictions at start of investigation process – Coupled with earlier issues of bias, suggested unfairness which good and fair employer would have dealt with – Possibility of predetermination of final result – Applicant claimed respondent reassured job safe – Authority found no assurances given on which applicant could reasonably rely – Encouragement to withdraw resignation proper reflection of realities of modern workplace - Applicant claimed suspension unfair – Suspension proposed and confirmed in same telephone conversation – Applicant’s evidence of phone conversation preferred – No genuine opportunity for applicant to coherently comment on prospective suspension – At least required advancing prospect of suspension, seeking comment then reflecting before final decision – Reason for dismissal was loss of trust and confidence in applicant as result of criminal offending predating commencement of employment relationship – Applying principles in Murray v Attorney-General [2002] 1 ERNZ 184, respondent could not dismiss in reliance on pre employment serious misconduct – Here, equity and good conscience jurisdiction does not allow Authority to conclude that despite that, decision to dismiss justified – Murray distinguished because higher standard applicable to Departments of State compared to meat works and dishonesty offences did not impact on applicant’s ability to carry out role – Unjustifiably dismissed – UNJUSTIFIED DISADVANTAGE – Authority concluded appearance of bias and unlawful suspension amounted to unjustified disadvantage – Remedies - Several occasions where applicant evasive and unethical in failing to provide straightforward answers when matters put to her – Not unlawful, but appropriate to require employees to truthfully answer employer’s questions – 50 percent contributory conduct – Applicant should not be seen to benefit from own wrong – Applicant provided little evidence of suffering - Award of $2,000 compensation appropriate – 3 weeks lost wages remaining from date of dismissal under employment agreement ($1,350) - Quality assurance officer |