| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 278/08 |
| Hearing date | 23 Jul 2008 |
| Determination date | 05 August 2008 |
| Member | V Campbell |
| Representation | A Taylor ; D Gillies |
| Location | Hamilton |
| Parties | Sifflett v D & L Investments Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant resigned giving approximately three weeks notice - Next day applicant raised sexual harassment complaint against co-worker (“E”) - Applicant stated would take matter further if no action taken - Respondent’s manager (“G”) investigated complaint, concluded no sexual harassment occurred, allegations false, and applicant’s conduct in making allegations constituted serious misconduct - Following disciplinary meeting applicant summarily dismissed for serious misconduct - Authority found G entitled to conclude sexual harassment not established - However, found G went further than that in viewing applicant’s complaint and threat of further action as constituting serious misconduct - Authority found applicant’s conduct not such as to deeply impair or destroy trust and confidence in employment relationship - Found G considered complaint as causing harm to E - Authority found no evidence harm caused to E - Authority found applicant dismissed for lying - Authority not satisfied allegation of lying put to applicant adequately enough during disciplinary process to put applicant on notice that was real reason for disciplinary action - Authority found fair and reasonable employer would not have concluded applicant’s conduct amounted to serious misconduct and dismissed applicant - Dismissal unjustified - Remedies - Authority found applicant resigned for multitude of reasons - Found unlikely had applicant not been dismissed would have remained in employment after date specified in resignation letter - Applicant entitled to reimbursement of lost wages for remainder of notice period - Interest awarded - Applicant gave no specific evidence of hurt and humiliation suffered as result of dismissal - Taking into account injury to feelings inherent in being subjected to unjustified dismissal, Authority awarded $2,000 compensation - UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by requirement to attend work at same time as E while investigation into complaint proceeded - Authority found applicant only worked on two days on which E also worked - Found very limited period of contact on those days and applicant not left alone with E - No unjustified disadvantage - Applicant claimed unjustifiably disadvantaged by respondent interviewing E at workplace while applicant there - Authority found interviewing E while applicant in workplace could and should have been avoided - However, found while applicant disadvantaged, disadvantage not unjustified - Applicant claimed unjustifiably disadvantaged by requirement to face E as he left investigation interview looking unconcerned and jovial - Authority found whether E looked unconcerned or jovial only relevant if applicant had alleged respondent was somehow responsible for E looking and acting that way - Authority found applicant not suggesting that - No unjustified disadvantage - Forecourt Attendant |
| Result | Application granted (unjustified dismissal) ; Application dismissed (unjustified disadvantage) ; Reimbursement of lost wages ($566.40)(Interest 10%) ; Compensation for humiliation etc ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s108;ERA s117;ERA Second Schedule cl11 |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415;BP Oil NZ Ltd v NID Distribution Workers etc IUOW [1989] 3 NZLR 580;Toll New Zealand Consolidated Ltd v Rowe [2007] ERNZ 840;X v Auckland District Health Board [2007] 1 ERNZ 66 |
| Number of Pages | 9 |
| PDF File Link: | aa 278_08.pdf [pdf 43 KB] |