| Summary |
UNJUSTIFIED DISMISSAL - Misconduct - Applicant dismissed following investigation into whether removed co-worker’s hold card from equipment being repaired - Respondent alleged removal was breach of policy and constituted serious misconduct - Applicant claimed located card and put it on co-worker’s bench but did not remove card from machinery - Applicant had Asperger’s syndrome, which was known to respondent’s manager but not all staff - Dispute as to whether applicant admitted removing card at informal meeting - Authority found fair and reasonable employer would not have concluded applicant admitted removing card at informal meeting - Found as informal meeting, applicant not represented, and no formal caution given nothing applicant said should have been held against him - Found fair and reasonable employer would have acted more formally to ensure applicant’s rights protected - Authority found were issues with way respondent determined credibility - Found evidence equivocal and respondent did not test it thoroughly enough - Found was possibility someone else removed card - Authority found insufficient evidence to establish applicant acted deliberately or recklessly so as meet requirements for serious misconduct under respondent’s Code of Conduct - Found requirement for high level of proof when serious allegation made not met - Authority found some elements of respondent’s procedures fair, however, found overall procedure no fair for number of reasons - Found involvement of employee at informal meeting and then in organising investigation process left open prospect of justice not being seen to be done - Found interview notes and some documents not given to applicant - Found while some information given orally, given applicant’s Asperger's and emotional state disadvantaged by being given information in that form - Found fair and reasonable employer would have made greater allowances for applicant in circumstances - Found respondent did not interview all possible witnesses during investigation - Authority found findings not put to applicant for comment - Decision to dismiss made during adjournment of meeting without applicant having opportunity to mitigate findings - Dismissal unjustified - Remedies - No contributory conduct - Applicant found new employment three weeks after dismissal - Applicant entitled to three weeks lost wages - Dismissal caused applicant hurt feelings and had financial impact - Applicant unable to get job locally and had to make arrangements for staying away from home - Compensation of $15,000 awarded - Electrician |