| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 364/09 |
| Hearing date | 18 Sep 2009 |
| Determination date | 13 October 2009 |
| Member | R A Monaghan |
| Representation | M Ryan ; B Smith, L Pound |
| Location | Auckland |
| Parties | Tielu and Anor v Chief Executive Department of Corrections |
| Summary | INJUNCTION – Application for interim reinstatement – Applicants dismissed following investigation into death in custody of prisoner while applicants on duty – Prisoner death occurred in or near block of prison where applicants working – Police called when deceased’s body found, however, respondent also began own fact finding investigation – Investigation found “face to name” muster check record showed all prisoners located and sighted – CCTV footage showed deceased could not have been sighted – Checks should have identified not only that deceased not in cell but other prisoners not where should have been – Subsequently respondent began employment investigation into applicants actions – Applicants suspended pending outcome of investigation – Respondent concluded second applicant failed to complete “face to name” muster and location checks as in policy prior to or following death in custody – Also concluded first applicant did not complete checks and gave false information – Respondent concluded overall second applicant breached code of conduct by committing negligent acts or unsafe practice seriously affecting security and failed to comply with respondent’s policies – Similar conclusions reached regarding first applicant, as well as false information finding – Applicants told actions amounted to serious breach of code of conduct and could lead to dismissal – Applicants offered opportunity to make submissions on findings – Respondent did not accept applicants’ explanations and serious misconduct found – Applicants dismissed – Authority found threshold for establishing arguable case met – Authority found many concerns raised by respondents could be addressed in substantive matter – Authority acknowledged fiscal constraints concerns of respondent, however, substantive investigation only months away and priority to be given to issuing determination – Found balance of convenience slightly favoured applicants – Authority found no dispute certain checks recorded as completed when not the case – Found even if contributory fault finding made in substantive matter, would not necessarily lead to finding reinstatement not practicable – Authority found final outcome of matter would probably turn on extent of applicants culpability in respect of actions and inactions effectively admitted – Found actions and inactions very serious on face but had yet to be placed in context applicants contending – Found while appeared strongly arguable case strength of applicants’ cases otherwise less clear – Interim reinstatement ordered pending substantive determination and on condition reinstatement to payroll only |
| Result | Application granted ; Cost reserved |
| Main Category | Injunction |
| Cases Cited | Madar v P & O Services (NZ) Ltd [1999] 2 ERNZ 174 |
| Number of Pages | 9 |
| PDF File Link: | aa 364_09.pdf [pdf 31 KB] |