| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 124/09 |
| Hearing date | 23 Feb 2009 - 24 Feb 2009 (2 days) |
| Determination date | 17 April 2009 |
| Member | J Crichton |
| Representation | VP Fleming (Applicant in person) ; M Lawlor |
| Location | Auckland |
| Parties | Fleming v Delamore & Reidy Mental Health Community Support Services Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed made numerous complaints to respondent about staff that reported to him and that respondent took no action - Respondent argued all allegations investigated and applicant informed of outcome - Authority satisfied respondent investigated and properly responded to all of applicant’s complaints - Authority concluded applicant did not want to accept was mistaken about allegations - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Serious misconduct - Another mental health provider service (“W”) alleged that applicant verbally abused one of W’s clients during support group applicant ran for another employer - At disciplinary meeting applicant denied allegations, questioned credibility of complainants, and refused to allow respondent to carry out further inquiry - Respondent felt could not proceed further with inquiries because of applicant’s refusal - Respondent concluded applicant guilty of verbal abuse amounting to serious misconduct - Applicant provided no response when told termination being considered - Applicant dismissed for serious misconduct - Authority found applicant’s behaviour at disciplinary meeting ensured respondent had no alternative but to dismiss - Authority satisfied proper for respondent not to override applicant’s request for no further inquiry - Authority satisfied respondent’s decision fair and reasonable - However, made clear Authority may have reached different conclusion if inquiries respondent wished to make had been conducted - Authority found law clear that conduct outside of work can give rise to dismissal - Authority satisfied available to respondent to dismiss applicant for misconduct outside of work because of close nexus between work environment and environment in which misconduct took place, seriousness of misconduct, and impact must have had on ability to have trust and confidence in applicant - Dismissal justified - Service manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Craigie v Air New Zealand Ltd [2006] ERNZ 147;DB Breweries Ltd v Hodgson unreported Travis J, 14 Oct 1996, AEC 68/96;Smith v Christchurch Press Company Ltd [2000] 1 ERNZ 624;Swann & Ors v ACI NZ Ltd and NZ Amalgamated Engineering etc IUOW [1990] 3 NZILR 262 |
| Number of Pages | 12 |
| PDF File Link: | aa 124_09.pdf [pdf 41 KB] |