| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 197/10 |
| Hearing date | 8 Oct 2010 |
| Determination date | 20 October 2010 |
| Member | J Crichton |
| Representation | A McKenzie ; T Cleary |
| Location | Christchurch |
| Parties | Dee v Air New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by suspension and then unjustifiably dismissed – Applicant sought reinstatement – Respondent argued applicant suspended after manager found applicant asleep on duty – Respondent’s investigation concluded applicant guilty of serious misconduct in sleeping or intending to sleep while on duty – Authority found clear respondent did not follow own disciplinary procedures and guidelines setting out policy for suspending employees – However, found difficult to see how respondent’s actions caused applicant disadvantage – Found suspension reasonable exercise of respondent’s discretion, even though respondent’s actions did not conform with own disciplinary policy – Applicant argued respondent could not prove was sleeping and therefore serious misconduct finding misconceived – Upon suspension applicant made no explanation but promised would not do it again – Authority found applicant’s observation could only be seen as redolent of guilt which was what respondent concluded – Nine days after incident applicant first offered explanation that was doing back exercises as prescribed by physiotherapist – No evidence provided of having seen applicant exercising in workplace – Authority accepted respondent’s evidence that knew about applicant’s back injury but did not know applicant required to exercise – Found fair and reasonable employer could conclude serious misconduct had occurred in particular fact situation even where specific allegation could not be proved – Found conclusion open to respondent on basis was more rather than less likely, therefore entitled to prefer respondent’s evidence – Authority also addressed allegations of procedural infelicities which could have led to unfairness – Found not persuaded even if union had pushed for alternative penalty outcome would have been different – Found respondent’s decision that of fair and reasonable employer – No unjustified dismissal – No unjustified disadvantage – Boiler Operator |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Airline Stewards and Hostesses of New Zealand IUOW v Air New Zealand Limited [1990] 3 NZILR 584 |
| Number of Pages | 11 |
| PDF File Link: | ca 197_10.pdf [pdf 33 KB] |