| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 275/10 |
| Hearing date | 24 Mar 2010 - 25 Mar 2010 (2 days) |
| Determination date | 11 June 2010 |
| Member | R Arthur |
| Representation | H White ; J Rooney |
| Location | Auckland |
| Parties | Te Stroet v Fonterra Cooperative Group |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant sought reinstatement claiming dismissal unjustified – Applicant accepted failed to follow correct procedures however suffered from anxiety disorder which should have been taken into account in decision making - Respondent argued applicant wilfully and deliberately falsified results for laboratory tests – Respondent discovered results submitted by applicant incorrect and documentation showed applicant deliberately falsified results – Disciplinary meetings held – Applicant disclosed felt really stressed at beginning of work shift – Disclosed taking medication as have difficulty with memory – Claimed felt panicked and tried to fix up mistake made - Applicant claimed actions not intentional – Medical report showed applicant suffered from generalised anxiety disorder – Applicant asked to obtain further specialist mental health report and for written warning rather than dismissal – Respondent stood applicant down on full pay while decision being made on whether instant dismissal appropriate - Respondent concluded although “one off incident”, applicant’s misconduct serious and summary dismissal appropriate – Respondent dismissed request for further medical reports – Authority found respondent did not take into account applicant’s claim suffering anxiety – Found respondent did not take into account applicant’s changed work pattern which may have indicated heightened anxiety – Found respondent failed to make sufficient inquiries into why applicant’s performance faulty – Found respondent did not fairly explore and discount plausible medical explanation – Found respondent entitled to reach serious misconduct conclusion on basis applicant failed to alert supervisors about condition – Found applicant negligent in failing to discharge obligations to follow correct procedures– Found even if dismissal accepted as justified, objective review of decision establish dismissal not justified – Found respondent did not give adequate consideration to applicant’s 27 year service – Found applicant’s incident not analogous to other case where technicians intentionally falsified results but only received written warning – Found disparity of treatment between that case and dismissal of applicant when possible conduct not intentional – Found respondent resiled from earlier agreement to explore alternatives and sought to dismiss instead – Found conduct breached good faith obligations – Found dismissal unjustified – REMEDIES – Authority found reinstatement practicable as risk of repetition low, former position not unsupervised and not burdensome for respondent to reintegrate applicant – Found applicant could be expected to be particularly diligent during work – Reinstatement ordered on specified conditions – Found 33.33 percent contributory conduct for failing to follow correct procedures – No order for compensation – Reimbursement of lost wages ordered – Laboratory Technician |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages (Quantum to be determined) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA s128;ERA s174;ERA Second Schedule cl10 |
| Cases Cited | Angel & Anor v Fonterra Co-operative Group [2006] ERNZ 1080;Air New Zealand Limited v Hudson [2006] 1 ERNZ 415;Chief Executive of the Department of Inland Revenue v Buchanan and Anor [2004] 2 ERNZ 392;Samu v Air NZ Ltd [1995] 1 ERNZ 636 |
| Number of Pages | 16 |
| PDF File Link: | aa 275_10.pdf [pdf 46 KB] |