| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 341A/09 |
| Hearing date | 15 Dec 2009 |
| Determination date | 18 December 2009 |
| Member | R Arthur |
| Representation | S Mitchell ; R McIlraith |
| Location | Auckland |
| Parties | Clayton v Ports of Auckland Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed dismissal unjustified as genuinely believed respondent’s procedure unsafe – Claimed subsequently agreed to comply with proper procedures which should have mitigated against dismissal - Respondent argued failure to follow proper procedures constituted serious misconduct – Argued entitled to disbelieve applicant’s statement about future compliance given intentional nature of misconduct – Respondent required operators to use channel 1C for instructions – Applicant intentionally used channel 1B – Applicant claimed respondent’s procedure unsafe – Respondent advised applicant procedure approved by health and safety committee – Advised future failure to follow procedure would amount to misconduct – Advised applicant should pursue concern through health and safety delegates – Applicant subsequently used channel 1B and missed instructions on channel 1C – Disciplinary meetings held – Applicant repeatedly refused to use channel 1C during discussions – Applicant subsequently stated would comply in future – Applicant claimed “out of character” conduct due to personal issues - Respondent disbelieved applicant would comply in future – Respondent found unacceptable for worker to deliberately flout proper procedures – Applicant dismissed – Authority found applicant’s failure to follow proper procedures constituted serious misconduct as placed health and safety of workplace at risk – Found actions also within scope of serious misconduct in collective employment agreement – Found applicant’s deliberate and repeated flouting of procedures entitled respondent to disbelieve statement of future compliance – Found respondent took into account applicant’s personal issues but not required to change decision to dismiss – Dismissal justified – Stevedore |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Air New Zealand v Hudson [2006] ERNZ 415;Angel & Anor v Fonterra Co-operative Group [2006] ERNZ 1080;Clayton v Ports of Auckland Ltd unreported, R Arthur, 22 Sep 2009, AA 341/09;Fuiava v Air New Zealand Limited [2006] ERNZ 806;Wellington Road Transport IUOW v Fletcher Construction Co Ltd (1983) ERNZ Sel Cas 59 |
| Number of Pages | 11 |
| PDF File Link: | aa 341a_09.pdf [pdf 36 KB] |