| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 48A/09 |
| Hearing date | 22 Apr 2009 - 24 Apr 2009 (3 days) |
| Determination date | 10 November 2009 |
| Member | R Arthur |
| Representation | M Ryan ; B Smith, I Foote |
| Location | Auckland |
| Parties | Gregory v Chief Executive of the Department of Corrections |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed dismissal, three warnings, and no implementation of performance improvement plan, were unjustified actions by respondent – Five reasons given for dismissal decision: applicant communicated with partner (“A”) of prisoner (“Z”) when inappropriate to do so; applicant had not told manager about contact with A; applicant inappropriately accessed prisoner records on respondent’s computer system; applicants comments suggested did not believe actions wrong; and applicant’s behaviour significantly eroded respondent’s trust and confidence in applicant – Applicant’s personal mobile number found in Z’s diary during cell search – Applicant mentioned in telephone calls between Z and A monitored by prison security – Z told A not to mention applicant’s name during calls – A on bail at time on charges of allowing residence be used to manufacture methamphetamine – During A’s calls to Z mentioned another person (“X”) whose name appeared on search warrant when police raided residence and applicant “looking into it for her” – Subsequently established applicant attempted to access prison records for X on respondent’s computer system – Prison manager (“S”) interviewed applicant and concluded applicant had not advised any manager of relationship with A and communicated with A on issues other than normal prisoner related topics – S’s findings relied on by regional manager (“M”) to conclude applicant’s conversations with A breached code of conduct – Applicant claimed no breach of code – Respondent accepted code did not expressly forbid formation of relationships with offenders families but code not exhaustive – Authority accepted applicant knew relationship inappropriate and why – Authority rejected applicant’s argument treated A no differently than any member of public – Found A no ordinary member of public at time of telephone calls and meeting – Found real prospect A could be convicted and placed in prison where applicant working – Found applicant’s response “would ask around” for A about X created at very least perceived potential conflict of interest with role as employee of respondent – Found code required compromise or conflict need not be certain but must be possibility – Authority satisfied respondent’s conclusion applicant’s contact with A breached code and amounted to serious misconduct one fair and reasonable employer would have made in circumstances – Found respondent’s actions those of fair and reasonable employer in concluding applicant should have known risk in relationship with A and should have reported to manager for guidance – Applicant denied accessing respondent’s records of particular prisoner for A but argued researching gangs in unit – Found code stated information systems to be used for business and authorised purposes only – Authority found applicant worked in women’s prison but only sought access to record about male prisoner X – Found respondent’s actions those of fair and reasonable employer in concluding applicant’s records access not for appropriate business purposes – Applicant disputed negative inferences taken by M from comments made during investigation – Applicant argued entitled to interact with A as would with any member of the public because consistent with presumption of innocence – Authority accepted respondent’s submission that applicant’s apparent lack of perception about inappropriateness of actions at heart of case – Found applicant’s comments about what was appropriate to do in future was conduct which deeply impaired trust and confidence essential to employment relationship – Found no procedural unfairness by respondent – Found respondent entitled to take into account warning issued to applicant to extent was current or relevant to issues being considered at time of investigation ending in applicant’s dismissal – Found present application also pursued earlier grievances about warnings – Found not case whether disadvantage arising from warnings – Applicant’s issue whether each warning justified – Authority found all three warnings justified – Authority found applicant had not established any real causal link between alleged failure to implement first performance improvement plan and dismissal – Found respondent’s reasons for rejecting applicant’s request for transfer those of fair and reasonable employer – Dismissal justified – Principal Corrections Officer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Northern Distribution Union v BP Oil Ltd [1992] 3 ERNZ 483;Alliance Freezing Company (Southland) Ltd v NZ Amalgamated Engineering etc;IOUW [1989] 3 NZILR 785 ; [1990] 1 NZLR 533 ; (1989) ERNZ Sel Cas 575 (CA) |
| Number of Pages | 22 |
| PDF File Link: | aa 48a_09.pdf [pdf 65 KB] |