| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 93/09 |
| Hearing date | 23 Feb 2009 - 24 Feb 2009 (2 days) |
| Determination date | 30 March 2009 |
| Member | P R Stapp |
| Representation | R Te Ao (in person ) ; A Gane |
| Location | Hamilton |
| Parties | Te Ao v The Chief Executive of the Department of Labour |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant employed as mediator by respondent - Parties to mediation complained about applicant’s conduct – Alleged applicant hugged one party during caucusing, made inappropriate comments including asking about other party’s sexual orientation, and alleged applicant’s behaviour led to perception of bias – Applicant denied some allegations and conceded others - Respondent’s investigators produced final report, including findings and conclusions – Respondent’s decision maker preferred complainant’s credibility – Decision maker concluded applicant’s behaviour unacceptable, lost trust and confidence in applicant, and continued employment untenable - Applicant dismissed – Applicant claimed acted properly and respondent should not have believed complainants over applicant – Dismissal procedure not contested – Authority found respondent correctly identified credibility issue arose between complainants and applicant – Authority found open to respondent, on available information, to prefer complainants’ information to that of applicant – Found respondent entitled to reject applicant’s mitigation – Found open to respondent to conclude allegations and conclusions reached by complainants led to their perception of bias – Found open for respondent to conclude actions constituted serious misconduct, rather than performance issue which would attract lesser penalty – Authority concluded respondent justified applicant’s dismissal for serious misconduct having come to honestly held belief that allegations reliable – Dismissal justified - Mediator |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Honda NZ Limited v NZ Boilermakers’ etc Union [1991]1 NZLR 392;Honda NZ Limited v NZ Shipwrights etc Union (1990) ERNZ Sel; Cas 855 |
| Number of Pages | 16 |
| PDF File Link: | aa 93_09.pdf [pdf 57 KB] |