| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 84/09 |
| Hearing date | 5 Mar 2009 - 12 Jun 2009 (2 days) |
| Determination date | 19 June 2009 |
| Member | J Crichton |
| Representation | P Yarrall ; G Harsent |
| Location | Christchurch |
| Parties | Henry v Lyttelton Engineering Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed following conclusion by respondent that drug dealing in workplace – Respondent observed behaviour considered consistent with drug dealing – Respondent redirected security cameras on areas where alleged activity happening – Respondent recorded footage of suspicious transaction – Applicant one of two participants in transaction – Applicant claimed lending co-worker (“B”) money, not selling drugs – Authority found innocent explanation given by applicant but rejected by respondent during investigation – At first meeting applicant shown video which depicted applicant meeting B and then B departing with small plastic bag – Respondent believed bag contained drugs not money – Applicant encouraged respondent to involve police and search home – Offer not taken up by respondent – Applicant at second meeting provided receipts and other evidence to show regularly lent co-workers money – Respondent had not spoken to witness (“C”) about transaction – Applicant dismissed at third meeting – Respondent argued influenced by ill ease of applicant at first meeting and “on attack” at second meeting – Authority found applicant stated bag was different colour to that stated by B – Applicant produced bag of both colours claimed at disciplinary meeting – B denied borrowing money or receiving anything from applicant when first interviewed by respondent – Respondent explained to B that had footage of B engaging with applicant – Authority found at second interview B stated borrowed money from applicant – Authority found possible explanation that B panicked when confronted with allegation and denied any association rather than explain relationship with applicant – Respondent argued B changed story because “got at” by applicant – Authority found no evidence to support respondent’s contention – Authority contacted B who stated in unsworn evidence that borrowed money from applicant – Authority found difficult evaluating quality of evidence but found B’s responses consistent with second response given to respondent – B gave evidence on oath that shocked, stunned and scared when initially questioned by respondent – B argued accused directly by respondent of buying marijuana from applicant – C gave evidence that told B to ask applicant for money – Authority found C witnessed transaction and when asked B whether received money from applicant, B answered affirmatively – Authority found respondent relied on doubts about reliability of B and C’s evidence and applicant’s extensive sweating during first disciplinary meeting – Found respondent’s conclusion on applicant’s honesty more problematic if B gave consistent evidence – Authority found major flaw in respondent’s process was discounting B’s evidence – Found because B lied when first questioned did not follow was lying during subsequent questioning – Found C acknowledged less than honest with respondent in other unrelated matters but did not mean dishonest about information concerning applicant – Authority rejected argument that collusion between applicant, B, and C – Authority found respondent placed reliance on video evidence and gave little weight to oral evidence which provided innocent explanation for footage - Dismissal unjustified – Remedies – Authority found compensation of $2,500 appropriate - Storeman |
| Result | Application granted ; Reimbursement of lost wages ($5,500) ; Compensation for humiliation etc ($2,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Honda NZ Ltd v NZ Shipwrights Union (1990) ERNZ Sel Cas 855; [1990] 3 NZILR;23;Lawless v Comvita New Zealand Ltd [2005] ERNZ 861 |
| Number of Pages | 11 |
| PDF File Link: | ca 84_09.pdf [pdf 33 KB] |