| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 101/10 |
| Hearing date | 26 Feb 2010 |
| Determination date | 04 March 2010 |
| Member | K J Anderson |
| Representation | A Sharp ; J Holden |
| Location | Auckland |
| Parties | Sharpe v The Chief of the New Zealand Defence Force |
| Summary | INTERIM INJUNCTION – Application to restrain respondent continuing with disciplinary proceedings – Applicant civilian member of Royal New Zealand Navy (“RNZN”) therefore employment relationship problem within Authority’s jurisdiction – Applicant had authority to make authorised purchases of equipment and use RNZN cellphone – Internal investigation identified significant expenditure on photographic equipment – Identified website titled “Tricky-Mickey Images” run by applicant – Applicant provided RNZN cellphone number on website – Website provided images taken with high quality Nikon equipment – Respondent found photographic equipment in applicant’s work locker – Applicant arrested on criminal charges for stealing from RNZN – Criminal trial pending - Respondent launched serious misconduct investigation - Respondent alleged applicant engaged in secondary employment without approval – Alleged unauthorised possession of respondent’s property – Alleged misuse of respondent’s property – Advised answering allegations would not prejudice applicant’s right to fair trial – Advised dismissal possible - Applicant suspended on full pay – Applicant claimed if required to participate in misconduct investigation, real danger anything communicated would prejudice applicant’s right to fair trial – Claimed right to remain silent pursuant to Bill of Rights Act 1990 (“BORA”) – Claimed arguable case - Respondent argued investigation restricted to matters alleged therefore no prejudice with respect to pending trial – Authority found nexus between criminal charge of unlawful acquiring of property and unauthorised possession and use of photographic equipment – Found despite respondent’s intention to distinguish between criminal charge and misconduct allegations, difficult not to stray between two areas – Found arguable case – Applicant claimed balance of convenience in their favour as no alternative remedy if right to fair trial prejudiced – Respondent argued balance in their favour as would have to continue burden of putting applicant on paid suspension – Argued made undertaking to not publish finding of investigation until trial complete - Found no alternative remedy as applicant faced seven years imprisonment – Found dismissal possible outcome - Found despite undertaking, case of public interest and possibility of disclosure real – Found detriment to applicant great therefore balance clearly in applicant’s favour – Respondent argued overall justice in their favour as s4 Employment Relations Act 2000 (“ERA”) required parties to be responsive and communicative – Argued applicant caught “red handed” therefore essential applicant answer allegations – Found s4 ERA, although proposition not tested, would not override BORA and common law right to remain silent – Found nexus between misconduct allegations and criminal charges create real danger of injustice – Found overall justice fell marginally in applicant’s favour – Authority ordered respondent to restrain from continuing with misconduct investigation until criminal proceedings completed – Interim injunction granted – Manager |
| Result | Application granted ; Costs dismissed |
| Main Category | Injunction |
| Statutes | Bill of Rights Act 1990 s23(4);Bill of Rights Act 1990 s25(c);Crimes Act 1961 s28(b);ERA s4(1A)(b);Evidence Act 2006 s60(1)(a)(ii) |
| Cases Cited | Harris & Sheppard v Courage (Eastern) Limited [1982] ICR 530 (CA);Healthlink South Ltd v National Union of Public Employees (Inc) unreported, Palmer J, 8 July 1993, CEC 34/93;Kendall v Presbyterian Support Services (Northern) [1992] 2 ERNZ 413;Melville v Chatham Islands Council [1999] 2 ERNZ 76;Russell v Wanganui City College [1998] 3 ERNZ 1076;Singh v The Chief Executive Officer of the Department of Labour [2005] 1 ERNZ 569;Sotheran v. Ansett NZ Ltd [1999] 1 ERNZ 548;Tasman Pulp & Paper Co Ltd v NZ (with exceptions) Shipwrights etc Union & Ors [1991] 1 ERNZ 886;Wackrow v Fonterra Co-operative Group Ltd [2004] 1 ERNZ 350 |
| Number of Pages | 13 |
| PDF File Link: | aa 101_10.pdf [pdf 49 KB] |