| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 402/10 |
| Hearing date | 5 Jul 2010 |
| Determination date | 07 September 2010 |
| Member | K J Anderson |
| Representation | S Scott ; G Malone |
| Location | Hamilton |
| Parties | Clarke v AFFCO New Zealand Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent carried out drug search exercise at entrance to carpark of plant - Respondent received complaint applicant had sworn at supervisor (“L”) assisting with search and then deliberately driven car towards L causing her to have to dive out of way to avoid being struck by car - Following first meeting to discuss incident applicant suspended on full pay - Following investigation respondent concluded applicant’s actions amounted to serious misconduct warranting dismissal - Applicant dismissed - Applicant claimed suspension unjustified - Found collective employment agreement (“CEA”) allowed for suspension - Found applicant represented by site union official - Found applicant did not object to appropriateness of suspension at time - Found as was allegation of serious misconduct and investigation and possible disciplinary action pending fair and reasonable for respondent to suspend applicant - No unjustified disadvantage - Applicant claimed dismissal unjustified - Applicant claimed due to inconsistencies between witness statements and diagrams respondent should have conducted further enquiries before making dismissal decision - Authority accepted were some inconsistencies but found no inconsistencies with regard to core allegation of applicant swearing and driving directly at L - Found on evidence fair and reasonable for respondent to conclude applicant’s actions “threatening and intimidating behaviour” under CEA warranting dismissal - Applicant claimed respondent did not take environmental factors at time of incident into account - Claimed was dark, poor lighting and staff not wearing high visibility vests - Applicant claimed did not see L in front of car - Witnesses believed L visible to applicant - Found in all circumstances likely applicant could see L - Found no significant environmental factors that could mitigate applicant’s actions - Dismissal justified - Slaughterman |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 8 |
| PDF File Link: | aa 402_10.pdf [pdf 26 KB] |