| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 383/08 |
| Hearing date | 28 Jul 2008 - 18 Aug 2008 (3 days) |
| Determination date | 07 November 2008 |
| Member | P Cheyne |
| Representation | A Hope ; R Schmidt |
| Location | Auckland |
| Parties | Painter v The Commissioner of Police |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious misconduct - Applicant put on performance improvement plan regarding appearance, grooming and punctuality – Following investigation, applicant served with and pleaded guilty to five charges of neglect of duty and misconduct - Applicant developed medical condition requiring assignment to light duties under rehabilitation plan – Year later, applicant charged with assaulting partner – Applicant suspended on pay – Respondent discovered complaint files, lost property records, exhibit sheets and correspondence files not actioned by applicant – Applicant charged with breaches of regulations - Authority preferred respondent’s evidence that applicant did not disclose further unactioned files to respondent when questioned – Respondent investigated and advised dismissal possible – Applicant dismissed for serious misconduct for mishandling files - Applicant discharged without conviction for criminal offence – Applicant claimed respondent took irrelevant considerations into account – Applicant claimed issues of criminal charges, drinking, lateness, unkempt appearance and destructive relationship with former partner not dealt with as arose, so should not have been considered in dismissal decision – Authority found dismissal letter related to file handling and no evidence decision-maker relied on those matters – Applicant claimed not advised of right to be heard by decision-maker – Authority found applicant represented throughout by experienced counsel and addressed decision-maker to extent applicant thought appropriate at time – Applicant claimed respondent failed to consider applicant’s medical condition and previous good work record – Authority found respondent put applicant on light duties in response to medical condition - Found disciplinary charges arose from failure to perform duties which fully fit to perform – Found respondent considered applicant’s service record, but earlier disciplinary charges more significant than positive aspects – Applicant claimed received insufficient training and inadequate supervision – Authority found when interviewed applicant confirmed knew requirements – Found fair and reasonable for respondent to treat failings as misconduct rather than training deficit – Applicant claimed disparity of treatment with constable fined rather than dismissed for arguably worse file handling – Authority found situations not analogous enough to create true disparity – Found sufficient explanation for disparity – Authority found decision-maker unconnected with circumstances of applicant’s misconduct – Dismissal justified - Police officer |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Crimes Act 1961 s347 |
| Cases Cited | Ashton v Shoreline Hotel [1994] 1 ERNZ 421;Chief Executive of Department of Inland Revenue v Buchanan [2005] 1 ERNZ 767;NZ Amalgamated Engineering etc IUOW v Fletcher Construction Co Ltd [1989] 3 NZILR 279;Quinn v BNZ [1991] 1 ERNZ 1060 |
| Number of Pages | 11 |
| PDF File Link: | aa 383_08.pdf [pdf 42 KB] |