| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 419/10 |
| Hearing date | 16 Jul 2010 |
| Determination date | 21 September 2010 |
| Member | V Campbell |
| Representation | G Bingham ; M Gillies |
| Location | Auckland |
| Parties | Porter v D & L Investments Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed from graveyard shift with respondent – Respondent questioned applicant when discovered cigarette butts outside workplace doorway – Applicant answered in affirmative to respondent’s question “who smokes here” – Authority found smoking on graveyard shift and outside respondent’s building breached smoking policy and night pay and lockdown policy – Found all policies attached to applicant’s employment agreement (“EA”) – Progressive Warning System (“PWS”) attached as part of EA outlined types of behaviour considered serious misconduct – Penalty for serious misconduct outlined as instant dismissal – PWS stated unauthorised absence from workplace during graveyard shift and breach of night pay policy amounted to serious misconduct – Prior to incident applicant’s employment subject to two warnings – First warning for failure to comply with respondent’s security procedures – Second warning for falsifying timesheet by claiming sick day when not sick – Respondent called applicant to disciplinary meeting – Applicant claimed did not leave workplace during hours of work – Respondent argued after viewing CCTV footage believed applicant lied – Subsequently applicant told respondent left workplace to remove signage with permission – Respondent believed applicant breached policies by leaving confines of workplace during hours when restricted to staying inside – Applicant summarily dismissed – Authority found applicant on notice second breach of security policies could lead to dismissal – Subsequently further investigations showed applicant not truthful at disciplinary meeting and allegation put to applicant – Found respondent’s actions those of fair and reasonable employer – Dismissal justified – Forecourt Attendant |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand v Hudson [2006] ERNZ 415;Toll New Zealand Consolidated Ltd v Rowe unreported, Shaw J, 19 Dec 2007, AC 39A/07;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 5 |
| PDF File Link: | aa 419_10.pdf [pdf 24 KB] |