| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 94/09 |
| Hearing date | 30 Jan 2009 |
| Determination date | 01 April 2009 |
| Member | R Arthur |
| Representation | S Scott ; M Broadbelt |
| Location | Hamilton |
| Parties | Munro v Cambridge Cosmopolitan Club Incorporated |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Misconduct – Applicant claimed unjustifiably dismissed following allegations of funds misappropriated – Applicant managed respondent’s finances which included using pre-signed cheques to pay expenses – Respondent held disciplinary meeting regarding allegations – Disciplinary panel were respondent’s Executive Committee (“EC”) chaired by President (“C”) – Allegations concerned unauthorised reimbursement of shoes, petrol, phone expenses and falsifying annual leave recordings - Applicant suspended – Second disciplinary meeting held and applicant provided explanations – Applicant firstly claimed reimbursement for shoes and petrol authorised by C - Secondly claimed employment agreement (“EA”) provided for respondent to pay for applicant’s phone expenses - Thirdly claimed no falsification – Explanations rejected and applicant dismissed – EC discovered unauthorised overtime payments made by applicant however allegation not disclosed to applicant during disciplinary process – Applicant claimed C had no authority to dismiss applicant under respondent's constitution – Authority found C had implied authority to dismiss applicant because President carried out key functions of respondent as an employer – Applicant claimed EC should not be involved in disciplinary process - Found C entitled to involved EC in disciplinary process, however, C must justify all decisions and actions taken by EC with regards to grievance – Applicant claimed dismissal not fair and reasonable - Found unfair investigation process led to wrongful serious misconduct conclusion – Found C impliedly authorised clothing and petrol expenditure therefore applicant entitled to reimbursement – Authority preferred applicant’s evidence C agreed to pay for work clothing – Authority preferred applicant’s evidence car used for work purposes and C told applicant to fill car up – Found no subterfuge – Applicant’s expenditures made openly and identifiable in respondent’s accounts - Found EA provided for reimbursement of phone expenses and no evidence to support falsification of leave records – Found applicant’s conduct not the standard expected of professional manager, however respondent’s practice of pre-signing cheques without prior authorisation added to circumstances – Found applicant disadvantaged by not having all allegations disclosed and not given opportunity to explain all allegations – Found issue of shoes and petrol tainted C’s view on overtime payments - Found C’s involvement in investigation unfair – C directly involved in events therefore bias perceptions may prevent fair investigations – Found fair employer would have arranged another respondent member to carry out investigation – Dismissal unjustified – REMEDIES – Respondent claimed lack of confidence and threat of resignation from other staff grounds to deny reinstatement – Found lack of confidence and animosity of staff insufficient grounds – Found reinstatement appropriate – Found 25 percent contributory conduct – Applicant’s use of pre-signed cheques to reimburse personal expenses blameworthy conduct - Found $8,000 compensation appropriate – No lost wages – Entitled to reimbursement of non-taxable allowance and telephone expenses – Manager |
| Result | Applications granted (Dismissal)(Disadvantage) ; Compensation for humiliation etc ($8,000 reduced to $6,000) ; Reimbursement of telephone expenses (Quantum to be decided) ; Reimbursement of non-taxable allowance (Quantum to be decided) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA s125(2) |
| Cases Cited | NZ Engineering Union v Fletcher Construction Co Limited [1989] 3 NZILR 279;NZ Food Processing IUOW v Unilever NZ Ltd [1990] 1 NZILR 35;NZ Tramways IUOW v Auckland Regional Council [1992] 2 ERNZ 883;PBO Ltd v Da Cruz [2005] 1 ERNZ 808 |
| Number of Pages | 14 |
| PDF File Link: | aa 94_09.pdf [pdf 45 KB] |