| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 375/09 |
| Hearing date | 8 Jun 2009 |
| Determination date | 29 October 2009 |
| Member | V Campbell |
| Representation | H Armstrong ; M Beech |
| Location | Tauranga |
| Parties | Gibbons v Quality Marshalling (Mount Maunganui) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by suspension - Applicant involved in two health and safety incidents - At meeting to discuss incidents was agreed applicant be stood down from supervisory role - Applicant then changed mind about stand down and sought meeting to discuss issue - At meeting applicant advised had behavioural issues requiring investigation and applicant suspended - Authority found applicant not told of complaints until after suspension decision - Found applicant not given access to written complaints until more than three days after suspension - Found likely respondent not in position to determine whether complaints met criteria for suspension until after applicant suspended - Found at time of suspension applicant not told of any specific serious misconduct allegations - Found fair and reasonable employer would have waited until had full allegations before calling applicant to meeting so all allegations could be discussed and applicant able to respond properly - Found suspension caused applicant unjustified disadvantage - Remedies - Applicant on full pay while suspended so no loss of remuneration - Little evidence of effect of suspension provided - Given lack of evidence and taking contributory conduct into account, compensation of $1,000 appropriate - UNJUSTIFIED DISMISSAL - Misconduct - Respondent claimed applicant insubordinate and offensive during conversation with manager - Applicant accepted swore but claimed not directed towards manager and robust language common in workplace - Authority found swearing specifically directed at manager and capable of being considered insubordination - Found insubordination constituted serious misconduct warranting dismissal in respondent’s rules - Respondent received complaints applicant referred to particular Samoan employee as a “coconut” - At least two complaints alleged applicant used term over respondent’s RT system and they turned volume down to avoid hearing comments - Applicant denied using term offensively and claimed was nickname - Authority found “coconut” not nickname - Found was racially offensive and denigrating to employee directed at - Respondent entitled to treat applicant’s conduct as serious misconduct - Authority found essential elements of procedural fairness present and while respondent did not follow own guidelines exactly, lack of adherence did not render otherwise justified dismissal unjustified - Found respondent’s actions those of fair and reasonable employer - Dismissal justified - Loader driver/Acting supervisor |
| Result | Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($1,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Bilkey v Imagepac Partners, unreported, Colgan J, 7 Oct 2002, AC 65/02;Mason v Health Waikato [1998] 1 ERNZ 84;McCosh v National Bank, unreported, Colgan J, 13 Sep 2004, AC 49/04;NZ Storeworkers IUW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452 |
| Number of Pages | 11 |
| PDF File Link: | aa 375_09.pdf [pdf 37 KB] |