| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 331/10 |
| Hearing date | 14 Jul 2010 |
| Determination date | 22 July 2010 |
| Member | Y S Oldfield |
| Representation | Ar Drake ; T Clarke |
| Location | Auckland |
| Parties | George v Auckland Regional Council |
| Summary | PRACTICE AND PROCEDURE - Application for removal to Employment Court - Applicant claimed dismissal for serious misconduct unjustified - Applicant also claimed unjustified disadvantage, breaches of contract and breaches of Employment Relations Act 2000 (“ERA”) - Applicant sought removal on grounds four questions of law likely to arise other than incidentally - Respondent opposed removal - First question of law whether where employer concluded employee committed misconduct, for which could not have been dismissed, was justifiable for employer under s103A ERA to add, before concluding disciplinary process, allegation of serious misconduct based on how employee responded to original allegation and then dismiss employee on that basis - Authority found law on question well settled - Found key issues to be resolved factual rather than legal - Found first question did not amount to important question of law - Second question whether where employee’s reputation and ability to work in chosen field of employment could be injuriously affected by dismissal for alleged untruthfulness, whether Chief Executive for local authority employer required to ensure careful, thorough and fair investigation carried out prior to deciding to dismiss - Found parties agreed on nature and standard of investigation required - Found only live issue whether respondent’s investigation met standard - Found that was factual issue for Authority to determine - No important question of law arising - Third question whether damages able to be awarded for reputational damage resulting from employer’s failure to carry out disciplinary proceedings fairly, in accordance with contractual and statutory obligations - Respondent agreed damages could be awarded for reputational damage and that reputational damage could be compensated for in personal grievance remedies - Found respondent’s acknowledgement of legal position disposed of question of law - Found only factual issues remaining between parties - No important question of law arising - Fourth question related to whether Authority or EC’s power to award reinstatement effected of Local Government (Tamaki Makaurau Reorganisation) Act 2009 and if reinstatement not ordered correct approach to determining compensation - Respondent claimed issue of reinstatement would only arise if applicant successful and reinstatement found to be practicable - Found if applicant reinstated before specified date would be in same position as if had not been dismissed, otherwise situation no different to any other situation where employer restructuring - Respondent claimed determination of any remedies would be by Authority’s usual approaches - Respondent’s submissions accepted - No important question of law arising - Group Manager, Accounting Services |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s178;ERA s178(2)(a);Local Government (Tamaki Makaurau Reorganisation) Act 2009;Local Government (Tamaki Makaurau Reorganisation) Act 2009 s35 |
| Cases Cited | Hanlon v International Educational Foundation (NZ) Inc [1995] 1 ERNZ 1 |
| Number of Pages | 6 |
| PDF File Link: | aa 331_10.pdf [pdf 24 KB] |