| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 6/10 |
| Hearing date | 17 Nov 2009 - 18 Nov 2009 (2 days) |
| Determination date | 13 January 2010 |
| Member | A Dumbleton |
| Representation | J Haigh QC, R McCabe ; K Toogood QC, K Thompson |
| Location | Auckland |
| Parties | C v AL Ltd |
| Summary | PRACTICE AND PROCEDURE – Non-publication order to continue until further review - UNJUSTIFIED DISMISSAL – Serious misconduct – Sexual harassment – Applicant dismissed following respondent’s investigation into allegations applicant obtained and consumed alcohol, failed to act responsibly as captain and sexually harassed flight attendant (“FA”) – Authority declined interim reinstatement in determination AA 296/09 – Authority noted unjustified disadvantage for suspension not pursued as separate grievance, however considered suspension reasonable option in circumstances at time - Authority found respondent’s investigation thorough, extensive and methodical – Found respondent not responsible for delay in inquiry of over one year, as C took right to silence with respondent during Police investigation – Found respondent made genuine allowance in favour of applicant’s account of drinking, but concluded applicant’s judgement impaired by alcohol – Authority rejected applicant’s argument of predetermination and bias – Found no evidence applicant victimised due to union role – Found respondent had reasonable grounds for believing, and in fact believed, serious misconduct occurred – Applicant argued sexual intercourse with FA consensual – Authority found conclusion sexual harassment occurred was fair and reasonable in circumstances – Found respondent could not be fairly criticised for placing no particular weight on Police decision not to charge applicant – Found reasonable conclusion reached by respondent that applicant breached employment through actions and involvement in buying and consuming alcohol – Found material circumstances included amount purchased and consumed, proximity of drinking to likely reporting time, and lack of discouragement to subordinate staff to participate – Applicant accepted that although was not in workplace, was in working environment when conduct occurred – Authority found direct connection between applicant’s conduct outside of workplace and special nature of employment as airline captain – Found respondent’s conclusion that applicant’s judgement impaired by amount of alcohol consumed supportable and reasonable when reached in critical context of safety - Found no inconsistency of treatment in applicant’s treatment compared to FA and first officer (“FO”) – Disciplinary action taken against FO, but no dismissal – Found major distinction that applicant entrusted with command position and neither FA or FO were found to have sexually harassed a co-worker – Found respondent reasonably made allowance for FA’s youth, inexperience, position, and passive role in purchasing alcohol – Authority rejected applicant’s argument that respondent did not properly consider alternatives to dismissal – Dismissal justified - Captain |
| Result | Application dismissed ; Orders made ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A)(c);ERA s103A;ERA s157;ERA Schedule 2 cl10 |
| Cases Cited | Frank v Air New Zealand Limited unreported, Goddard CJ, AC 121/95;Fuiava v Air New Zealand [2006] ERNZ 806;Peters v Collinge [1993] 2 NZLR 554;Smith v Christchurch Press Company Ltd [2000] 1 ERNZ 624;Whanganui College Board of Trustees Limited v Lewis [2000] 1 ERNZ 397 |
| Number of Pages | 17 |
| PDF File Link: | aa 6_10.pdf [pdf 54 KB] |