| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 275/08 |
| Hearing date | 15 Feb 2008 |
| Determination date | 04 August 2008 |
| Member | D King |
| Representation | AM McInally ; R Harrison |
| Location | Auckland |
| Parties | Jessen v Fairfax New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant summarily dismissed for serious misconduct for five allegations – First allegation that applicant misrepresented conversation with editor in chief (“K”) in saying applicant got K to back down regarding timeframe for applicant’s relocation – Authority found K’s allegation not corroborated by chief reporter’s (“F”) version of events, that applicant only insinuated convinced K to delay move – Found insinuation was vague comment insufficient to sustain allegation of misrepresentation – Found nothing direct or clear upon which K could have concluded applicant misrepresented conversation – Found even if applicant said had got K to back down or change his mind, not constitute serious misconduct - Second allegation that applicant made derogatory remarks about branch editor and was untruthful in initially denying comments – Authority found remarks foolish but applicant understandably upset about sudden move – Found remarks not serious misconduct - Third allegation that applicant sometimes rude and unhelpful to co-workers which undermined working relationships impacting negatively on respondent’s business – Authority found applicant had problems in relationships with co-workers – Found two incidents previously raised with applicant – Found other concerns not previously raised with applicant – Found issues not major in themselves - Fourth allegation that applicant engaged in inappropriate communications with others in way that undermined respondent and presented respondent and management negatively – Respondent argued applicant complained about transfer on phone leaving people thinking applicant had been badly treated and respondent was bad company – Authority found allegation based on witness’ suspicions and inferences – Found no safe evidence applicant spoke to contacts inappropriately – Found nothing to warrant disciplinary action - Fifth allegation that applicant untruthful in responses to allegations – Authority found details of allegations should have been provided prior to meeting, as may have affected applicant’s responses to seem as if lying – Found reasonable employer would not have concluded responses deliberately untruthful – Authority considered emails between applicant and friend discussing recent work resignations - Found nothing more than gossip between friends – Found natural to hold all manner of views about employer and workplace – Authority found even cumulatively, incidents not serious misconduct - Found actions did not constitute conduct deeply impairing or destructive of basic trust and confidence essential to employment relationship – Dismissal unjustified – REMEDIES – Authority noted respondent bore onus of displacing reinstatement as primary remedy – Authority found respondent’s main reason for lack of trust and confidence was assertion applicant lied – Found unsafe conclusion based on failure to provide adequate information at proper time – Found insufficient evidence reinstatement would damage workplace relationships – Reinstatement ordered – Authority found applicant mitigated loss – Reimbursement of lost earnings awarded – Applicant claimed lost opportunity to derive income from casual contract as result of dismissal – Authority declined to make award for possible income from casual work – Authority awarded moderate compensation of $4,000 for hurt and humiliation – Authority found applicant’s behaviour towards co-workers, personal emails and some ill-chosen expressions of disappointment and distress amounted to contributory conduct – Remedies reduced by 20 percent - Newsroom photographer |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages ($14,487.48 reduced to $11,589.98) ; Compensation for humiliation etc ($4,000 reduced to $3,200) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s128(2);ERA s128(3) |
| Cases Cited | BP Oil NZ Ltd v Northern Distribution Union [1992] 3 ERNZ 483;Sefo v Sealord Shellfish Ltd [2008] ERNZ 178 |
| Number of Pages | 19 |
| PDF File Link: | aa 275_08.pdf [pdf 60 KB] |