| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 100A/10 |
| Hearing date | 16 Jun 2010 - 23 Jun 2010 (3 days) |
| Determination date | 10 August 2010 |
| Member | H Doyle |
| Representation | A McKenzie ; P Zwart |
| Location | Christchurch |
| Parties | Smith and Anor v Comptroller of Customs |
| Other Parties | Rankin |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Respondent concluded had been leak of confidential and personal information to newspaper (“P”) relating to Officer X – Respondent conducted investigation into who released information and who had knowledge of release of information – First applicant summarily dismissed after respondent’s investigation concluded involved in unauthorised release of information to media and actions irreparably damaged trust and confidence with respondent – Second applicant summarily dismissed after respondent’s investigation concluded breached code of conduct as had knowledge of involvement of co-worker in unauthorised release of information and failed to inform respondent – Respondent argued both dismissals procedurally and substantively justified – Applicants claimed dismissals unjustified and reinstatement sought – Disclosure to P potentially implied Officer X misusing authority for sexual gratification - Authority found transcripts of interviews with other employees not provided to applicants until after dismissal – Found respondent’s process did not fit neatly into process set out in disciplinary policy – Found providing specific allegations required as part of disciplinary policy and general requirement of fair process – Found in absence of specific allegations difficult for applicants to answer concerns – Found allegations applicants required to answer too broad – Found fair and reasonable employer would have provided chronology without censorship – Found respondent’s failure to provide transcripts of interviews put applicants in inferior position where unable to comment on matters already before decision maker – Found disciplinary policy required disclosure be made to employee of evidence supporting allegation – Found investigation proceeded on basis clear P had information from early stage – Authority not satisfied conclusion available on material then before respondent – Found respondent’s conclusions second applicant had knowledge of leak and failed to advise respondent not fair or reasonable – Authority accepted enough evidence to create suspicion first applicant involved in release – However, given evidence fair and reasonable employer would not have concluded first applicant only officer with motive – Found no direct evidence of first applicant’s involvement in leaking information to P – Found circumstantial evidence would be regarded by fair and reasonable employer as insufficient – Found insufficient evidence about first applicant being involved in leak – Found respondent’s investigation into applicants’ conduct not that of fair and reasonable employer – Dismissals unjustified – REMEDIES – Reinstatement sought – Found some blameworthy conduct by applicants – Found evidence gathered circumstantial and some inferences drawn because of first applicant’s attitude – First applicant claimed could work with Officer X and would act with professionalism and integrity – Authority concerned whether first applicant could move on from allegations against Officer X as outcome not one expected – Authority satisfied first applicant able to move on – Found first applicant to be reinstated – Authority found reinstatement of second applicant practicable – Found to recognise contribution, no compensation awards made – Applicants awarded reimbursement of lost wages – Customs Officer/Assistant Chief Customs Officer |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages (First applicant)(Quantum to be determined) ; (Second applicant)(Quantum to be determined) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Customs and Excise Act 1996;ERA s103A;ERA s124;ERA s125;ERA Second Schedule cl10(1) |
| Cases Cited | Shipwrights etc Union v Honda NZ Ltd [1989] 3 NZILR 82;Stimpson v Auckland Health Care Services Ltd t/a Auckland Health Care [1993] 2 ERNZ;Willis v Fonterra Cooperative Group Ltd unreported, [2010] NZEMPC 80 |
| Number of Pages | 34 |
| PDF File Link: | ca 100a_10.pdf [pdf 106 KB] |