| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 162/09 |
| Hearing date | 7 Jul 2009 - 24 Jul 2009 ( 3 days) |
| Determination date | 01 October 2009 |
| Member | J Crichton |
| Representation | D Beck ; S Wragg |
| Location | Greymouth;Christchurch |
| Parties | Wastney v The Chief Executive of the Department of Corrections |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct - Applicant given notice of three allegations and suspended during respondent’s investigation – Respondent concluded applicant used respondent’s van and trailer for personal purposes and arranged to have firewood belonging to respondent offloaded at applicant’s home – Respondent dropped additional allegation that applicant worked without authorisation on day off – Applicant made submissions regarding appropriate penalty – Respondent confirmed provisional view that appropriate penalty was dismissal – Authority found allegation applicant used work vehicle for personal purposes clearly made out on evidence – Found most serious allegation that applicant caused part of firewood to be discharged at own home, so that local community work sponsor did not receive full load – Found respondent reached proper and sustainable conclusions – Found finding of serious misconduct open to fair and reasonable employer at time - Authority found respondent invited different area manager (“N”) to conduct independent investigation – Found process adopted by N robust – Found number of witnesses interviewed personally and notes kept – Found applicant interviewed at beginning and end of investigation, so could respond to matters raised during investigation – Found complied with procedures in code of conduct – Applicant claimed N biased – Authority found no evidence to indicate N decided matter before started investigation – Found N had no previous engagement with principal protagonists in investigation - Authority rejected bias allegation absolutely – Applicant claimed N failed to consider applicant’s allegation that was victim of bullying, conspiracy and “set up” – Authority accepted number of applicant’s co-workers resentful that applicant in workplace after earlier disciplinary matter – However, found no evidence to link dislike to alleged “set up” – Found no evidence of causal link between alleged bullying and allegations against applicant – Authority found insufficient evidence to support applicant’s further allegations co-worker created fictional character to cause applicant mischief; co-worker doctored photograph of van and trailer at applicant’s house; and co-worker failed to inspect applicant’s property when applicant suggested – Found investigation fair and balanced, and applicant’s contentions about alleged deficiencies completely misplaced – Found respondent took appropriate consideration of final written warning for serious misconduct three months before events – No unjustified dismissal - UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent failed to investigate bullying and harassment complaints – In first interview with N, applicant alleged was set up by conspiracy of co-workers – In second interview, applicant alleged was bullied – Respondent argued grievance not raised within 90 day period – Authority found respondent on notice of applicant’s complaints of collegial relationships from first interview – Found if wrong, alternative pathway that when faced with complaints, respondent obligated to conduct proper investigation and reach reasonable and sustainable conclusions to provide safe workplace – Found no proper steps taken to investigate applicant’s concerns in timely fashion – Found HR team’s inquiries concluded long after applicant dismissed – Disadvantage unjustified – Remedies - $3,000 compensation appropriate - Probation officer |
| Result | Application granted (disadvantage) ; Applications dismissed (dismissal) ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103;ERA s103A;Health and Safety in Employment Act 1992 |
| Cases Cited | Clark v Nelson Marlborough Institute of Technology unreported, Couch J, 19 Aug 2008, CC 12/08 |
| Number of Pages | 15 |
| PDF File Link: | ca 162_09.pdf [pdf 45 KB] |