| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 109/09 |
| Hearing date | 28 Mar 2009 |
| Determination date | 06 April 2009 |
| Member | R Arthur |
| Representation | A McInally ; K Amodeo |
| Location | Auckland |
| Parties | Curtis v Airwork (NZ) Ltd |
| Summary | INTERIM INJUNCTION - Application for interim reinstatement - Applicant dismissed for failure to comply with agreement reached on wearing uniform - Throughout five year employment wore own shorts to work during summer - Respondent issued all employees with new uniform - Applicant concerned uniform would aggravate eczema - Respondent agreed to provide applicant with alternative shirts but required applicant wear trousers provided - Applicant continued to wear shorts - Formal disciplinary meeting held where applicant agreed to wear trousers but only after trousers washed and parties agreed if eczema developed medical advice would be sought - Applicant wore shorts next day and on questioning said left trousers in respondent’s laundry bin to be washed - Respondent believed applicant knew had to wash own uniform - Informed applicant situation had become “loss of trust confidence issue” and applicant dismissed - Authority found applicant had arguable case - Found arguable fair and reasonable employer would not have dismissed employee with no previous disciplinary issues in circumstances where disagreement on terms of agreement made, no formal disciplinary meeting held before dismissal, and other options besides dismissal available - Authority found permanent reinstatement arguable on basis of lack of previous disciplinary issues, no complaints about performance of work, and whether actual circumstances of argument about wearing shorts proportionate with respondent’s subsequent assertion of serious loss of trust and confidence - Authority found balance of convenience lay with applicant - Investigation meeting on substantive issues some time away - Found damages not sufficient compensation in present recessionary economic climate - Respondent claimed identified evidence of unsatisfactory work practices by applicant after dismissal - Respondent claimed evidence combined with applicant’s attitude would pose safety risk to operations - Authority did not accept allegations regarding safety outweighed totality of factors considered in balance of convenience - Found concerns could be addressed by reinforcement of relevant rules - Authority found overall justice lay with applicant - Applicant had strong case that suffered disproportionately severe sanction for relatively minor uniform issue - Weakness of applicant’s case was extent of contribution to situation leading to dismissal - Authority found not reasonable for any provision of interim reinstatement to be on garden leave - Respondent would have ability to apply disciplinary rules in event of any actual breaches of obligations - Authority found that would provide sufficient safeguards without having to go further and allow respondent to impose garden leave - Interim reinstatement ordered on conditions - Aeronautical electrician |
| Result | Application granted ; Interim reinstatement ordered on conditions ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s3;ERA s101;ERA s127 |
| Cases Cited | Auckland District Health Board v X [2005] 1 ERNZ 487;Cliff and Anor v Air New Zealand Ltd [2005] 1 ERNZ 1;Orme v Eagle Technology Group Ltd unreported Goddard CJ, 15 Jun 1995, WEC 40/95;Sky Network Television Ltd v Duncan [1998] 3 ERNZ 917;X v Y Ltd & NZ Stock Exchange [1992] 1 ERNZ 863 |
| Number of Pages | 14 |
| PDF File Link: | aa 109_09.pdf [pdf 44 KB] |