| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 59/09 |
| Hearing date | 1 Oct 2008 - 12 Deb 2008 (2 days) |
| Determination date | 23 February 2009 |
| Member | A Dumbleton |
| Representation | I Davidson ; G Service |
| Location | Auckland |
| Parties | Corlett v Transfield Services (New Zealand) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed final warning unjustified – Applicant’s role involved delivering waste to transfer plant operated by client of respondent – Client complained to respondent of applicant’s conduct on two occasions - Client banned applicant from plant – Client alleged applicant swore and refused to follow instructions – Respondent held disciplinary meeting with applicant to discuss complaint and ban – Applicant advised to bring support person and warned dismissal possibility – Respondent rejected applicant’s explanation for behaviour – Respondent concluded serious misconduct warranting final warning – Authority found conduct towards client serious and damaged respondent’s reputation – Found respondent reached decision to issue final warning after thorough enquiries, including asking applicant’s version and discussing complaint with client - Found respondent reasonably concluded conduct amounted to serious misconduct – No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Serious misconduct – Authority accepted respondent’s evidence that warned applicant breaching ban could result in all respondent’s employees banned from plant and applicant’s dismissal – Respondent made alternative arrangements so applicant could continue work without going to plant – One week after disciplinary meeting, applicant went to plant – Applicant drove respondent’s vehicle and wore work uniform – Client complained to respondent – Applicant called to second disciplinary meeting – Respondent denied applicant’s third request for rescheduling of meeting, having granted prior two requests – Applicant’s union representatives present at disciplinary meeting – Applicant telephoned to explain was not coming to meeting for family reasons – Respondent proceeded without applicant – Respondent concluded applicant disregarded respondent’s and client’s instructions only one week after final warning issued, thereby destroying trust and confidence - Respondent concluded actions serious misconduct and terminated employment – Authority found strongest challenge to justification of dismissal was fact meeting proceeded without applicant – Found applicant had indicated would attend meeting – Found representatives did not protest to meeting continuing without applicant – Representatives argued that at time thought respondent already decided to dismiss anyway – Authority found union representatives put forward no basis for conclusion of predetermination – Found respondent wary of whether applicant had genuine reasons for not being present, as diversionary tactics previously used - Authority found fair and reasonable for respondent to proceed with meeting – Found was applicant’s decision not to attend meeting – Found even without applicant’s presence at meeting, was open to respondent to find applicant had deliberately disobeyed lawful and reasonable instructions and final warning – No justification for applicant that was trying to clear name because applicant aware that involved breaching ban and disobeying instructions – Actions constituted serious misconduct under house rules - No unjustified dismissal – Authority noted if had found applicant unjustifiably dismissed, would likely have found substantive if not total contributory conduct - Horticulturalist |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s122 |
| Cases Cited | Air New Zealand Limited v Hudson [2006] 3 NZELR 155;Telecom New Zealand Limited v Nutter [2004] 1 ERNZ 315 |
| Number of Pages | 13 |
| PDF File Link: | aa 59_09.pdf [pdf 42 KB] |