| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 33/09 |
| Hearing date | 17 Mar 2009 |
| Determination date | 23 March 2009 |
| Member | D Asher |
| Representation | T Wilton ; S Hornsby-Geluk |
| Location | Palmerston North |
| Parties | Gray v Land Transport New Zealand |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed final warning received for serious misconduct unjustified – Respondent argued fairly issued final warning – Member of public (“X”) complained to respondent that applicant implied at public restaurant had accessed information about X other than for business purposes - X told respondent had not heard comments but wife (“Y”) had – Applicant denied viewing information about X and saying what was alleged – Applicant met with respondent and initially advised unable to recall whether at restaurant and confirmed had been drinking – Following further meetings respondent advised preliminary conclusion applicant conversed with Y and implied accessed information about X not for legitimate reasons – Applicant subsequently strongly denied allegations and claimed produced evidence casting doubt on allegations – Respondent confirmed applicant’s actions serious misconduct and issued final warning – Authority found respondent’s findings unjustified – Found X’s first written allegation arguably deliberately masked parties long standing and strained relationship – Found respondent did not inquire into any motive for obscuring relationship – Found highly unlikely given long standing relationship applicant would have used specific words alleged – Found in absence of any investigation or independent evidence no basis for finding substantive complaint more plausible – Found conflicted accounts between X and Y diminished credibility – Found respondent’s failure to interview third person narrowed respondent’s evidential findings – Found fair and reasonable employer would not have relied on applicant’s initial uncertainty to determine substantive complaint – Authority concluded did not accept fair and reasonable but not necessarily totally impartial employer would conclude what was alleged – Warning unjustified – Remedies – Applicant claimed hurt and shocked respondent chose to believe malicious complaint – Authority found $5000 compensation appropriate – Found no contributory conduct – Senior business support officer |
| Result | Application granted ; Compensation for humiliation etc ($5,000) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Arthur D Riley v Wood unreported, Shaw J, 8 October 2008, WRC 25/07;Shipwrights etc Union v Honda NZ Ltd [1989] 3 NZILR 82 |
| Number of Pages | 12 |
| PDF File Link: | wa 33_09.pdf [pdf 40 KB] |