| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 44/10 |
| Hearing date | 16 Feb 2010 |
| Determination date | 02 March 2010 |
| Member | D Asher |
| Representation | A Millar ; E Robinson |
| Location | Wellington |
| Parties | McLeay v Radius Residential Care Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent advised applicant had serious concerns about applicant’s performance and conduct that could result in disciplinary action - Applicant replied to concerns - Other matters of concern to respondent discovered and communicated to applicant - Disciplinary meeting held after which applicant suspended on full pay - Applicant replied to concerns again - Applicant’s explanations for two of allegation accepted - Applicant summarily dismissed in respect of five other matters - First matter was complaint made by X about respondent’s practices - Complaint did not specifically identify applicant - Applicant claimed not directly or indirectly responsible for matters complained of and had spoken with X previously and believed complaint resolved amicably - Authority found respondent failed to provide applicant with intelligible statement of allegations of misconduct and did not challenge applicant’s response by way of objective review - Found respondent had not demonstrated applicant’s actions or inaction resulted in complaint - Found in circumstances fair and reasonable employer would not have found serious misconduct by applicant - Second matter was applicant’s failure to document visits and contacts in client files at time of contact - Applicant claimed acted in manner that was practice at time and had received no instructions to act differently - Respondent came to believe applicant had manufactured documentation after the event - Allegation not put to applicant - Found respondent did not follow fair process in dealing with concerns - Found respondent did not check with applicant’s predecessor to determine what had been practice - Found respondent should have put concerns applicant manufacturing documentation to applicant - Found respondent not justified in finding serious misconduct - Third matter was employment and subsequent unauthorised and improper suspension of Y - Applicant claimed employed Y as part of normal duties and had delegated authority to act as did - Applicant suspended Y when became aware had probably falsified information and was subject to Police investigation - Found respondent made no inquiry of applicant’s predecessor in respect of previous practice and applicant’s induction - Found respondent could not establish, on balance of probabilities, applicant deliberately ignored procedures - Found fair and reasonable employer would not have dismissed applicant - Fourth matter that applicant supplied guarantees of employment to three work permit applicants without authorisation - Applicant again claimed part of duties to make offers of employment - Authority reached same conclusion about fourth matter as had for third matter for same reasons - Fifth matter was failure to issue Handbook to new employees and ensure official orientation carried out - Applicant claimed did what predecessor had done - Found not clear why orientations not acceptable - Authority not persuaded fair and reasonable employer would have found applicant’s actions amounted to serious misconduct warranting summary dismissal - Found complaints against applicant should have been seen, and handled, as performance issues - Found no evidence applicant’s performance so defective and injurious of respondent’s interest to justify summary dismissal - Dismissal unjustified - Remedies - Found applicant’s election to speak to employer only by written correspondence contributed to grievance to extent frustrated respondent’s ability to get clear, prompt answers to concerns and contributed to failure to properly weigh evidence - Found 25 percent contributory conduct - Found three months lost wages, subject to contribution, appropriate - Found effects of dismissal significant and worsened by effect of having to quickly respond to unjustified disciplinary process on return from holiday - $10,000 compensation, subject to contribution, appropriate - Local Manager |
| Result | Application granted ; Reimbursement of lost wages (3 months reduced to 2 months) ; Compensation for humiliation etc ($10,000 reduced to $7,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;Click Clack International Ltd v James [1994] 1 ERNZ 15;Honda NZ Ltd v NZ (with exceptions) Shipwrights etc Union [1990] 3 NZILR 23 ; [1991] 1 NZLR 392 ; (1990) 3 NZELC 98,130 ; (1990) ERNZ Sel Cas 855;McLeay v Radius Residential Care Ltd unreported, D Asher, 28 Oct 2008, WA 144/08;Northern Distribution Union v Newman’s Coach Lines Ltd [1980] 2 NZILR 677;Pacific Forum Line Ltd v NZ Merchant Service Guild IUOW [1991] 3 ERNZ 1035;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 15 |
| PDF File Link: | wa 44_10.pdf [pdf 46 KB] |