| Summary |
UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant charged with and convicted of “Driving with Excess Breath Alcohol, Third or Subsequent Offence” (“The Offence”) - Applicant disclosed events to respondent as they arose - Applicant placed on special leave and then suspended following conviction - Applicant told respondent believed actions breached Code of Conduct and dismissal was possibility - Applicant given opportunity to respond to preliminary conclusion - Following investigation applicant advised dismissed for breach of Code of Conduct and loss of trust and confidence in him - Applicant did not challenge respondent’s disciplinary procedure but claimed respondent unfairly took into account previous convictions - Respondent submitted concessions made by applicant during disciplinary process constituted acceptance conduct amounted to serious misconduct and dismissal possible outcome - Authority found only issue whether respondent met test in s103A Employment Relations Act 2000 - Authority considered whether dismissal procedure rendered unfair by taking into account prior convictions - Respondent submitted prior excess alcohol convictions relevant and considered only insofar as formed part of conviction for The Offence - Authority accepted argument and concluded no unfairness associated with consideration given to applicant’s prior criminal history - Authority considered whether, in making decision to dismiss, respondent considered all circumstances, including work environment, applicant’s work record and personal and work related stress was suffering - Respondent argued particular employment environment a factor to be considered as high standard of conduct required from prison officers - Authority accepted respondent’s submission - Found respondent properly took into consideration particular employment environment in making decision to dismiss - Found respondent gave sufficient consideration to applicant’s work history and to submission personal and work related stress mitigated conduct - Authority considered whether alleged disparity of treatment, historical or current, rendered dismissal unjustified - Applicant did not provide any specific information about disparity allegation for respondent to meaningfully respond to or which would have provided sufficient basis for further investigation by Authority - Authority found evidence did not support finding of unjustified disparity of treatment between applicant and other staff - Authority found notwithstanding fact respondent opted not to dismiss applicant at time of previous conviction, dismissal within range of possible outcomes then as was with current conviction - No dispute applicant told so at early stage in disciplinary process - Applicant never disputed conduct was capable of amounting to serious misconduct and dismissal - Authority accepted untenable and irresponsible for respondent to overlook further instance of serious misconduct - Dismissal justified - Principal Corrections Officer |