| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 341/09 |
| Hearing date | 18 Sep 2009 |
| Determination date | 22 September 2009 |
| Member | R Arthur |
| Representation | S Mitchell ; K Dunn |
| Location | Auckland |
| Parties | Clayton v Ports of Auckland Ltd |
| Summary | INJUNCTION – Application for interim reinstatement – Applicant claimed dismissal unjustified as conduct not sufficiently serious to constitute serious misconduct – Respondent argued applicant’s repeated refusal to follow fair and reasonable instructions created safety hazards amounting to serious misconduct – Applicant refused to use proper radio channel (“1C”) to receive instructions – Applicant switched channel to “1B” and did not receive instructions – Respondent’s manager (“K”) advised applicant required to use 1C as procedure approved by health and safety committee - Applicant claimed safer to hear instructions through 1B – K sent letter to applicant confirming failure to follow correct procedures may result in serious misconduct – Applicant subsequently reported two incidents, notifying K safer to use 1B as not all information despatched through 1C – Disciplinary meeting held after second repeated incident – Applicant admitted actions constituted misconduct and assured K would comply with instructions from then on – Respondent concluded misconduct sufficiently serious to warrant dismissal – Applicant later claimed personal difficulties contributed to “out of character behaviour” – Applicant claimed arguable case on three heads – First, respondent failed to properly weigh applicant’s genuine safety concerns – Second, respondent failed to consider applicant’s statement of willingness to comply – Third, respondent failed to consider applicant’s 15 year service and clean performance record as mitigating factors against dismissal – Respondent argued no arguable case as incident constituted serious misconduct pursuant to collective employment agreement – Authority found arguable case, although some aspects weak – Applicant claimed balance of convenience in their favour due to financial hardship and significant delay in substantive determination – Respondent argued balance in their favour as real doubt applicant would follow instructions in future – Argued applicant’s conduct incompatible with ability to discharge duties which contributed to lost trust and confidence – Argued compensation inadequate to remedy injuries caused by failure to follow instructions – Argued permanent reinstatement not diminished as applicant’s position “generic” - Found balance and overall justice favoured respondent – Found respondent’s evidence stronger, applicant deliberately declined instructions and safety paramount in port environment – Found permanent reinstatement open to applicant if successful in substantive determination - Interim reinstatement declined – Stevedore |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s127 |
| Cases Cited | Auckland District Health Board v X (No 1) [2005] ERNZ 487;Cliff v Air New Zealand [2005] ERNZ 1;Fuiava v Air New Zealand Limited [2006] ERNZ 806;Orme v Eagle Technology Group Limited, unreported, Goddard CJ, 15 Jun 1995, WEC 40/95;X v Y Ltd v NZ Stock Exchange [1992] 1 ERNZ 863 |
| Number of Pages | 12 |
| PDF File Link: | aa 341_09.pdf [pdf 41 KB] |