| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 478/10 |
| Hearing date | 18 Oct 2010 |
| Determination date | 10 November 2010 |
| Member | R Larmer |
| Representation | L Fremaux ; I Davidson |
| Location | Auckland |
| Parties | Autagavia v Tiny Town Learning Centres Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Respondent’s owner (“W”) received written complaint from employee (“C”) alleging had witnessed applicant assaulting a child – W spoke with C and determined C was reliable witness – W retyped C’s complaint removing C’s name, alleged date and time of incident and where C standing when witnessed incident – C had asked to remain anonymous - Applicant called to disciplinary meeting where presented with retyped complaint and asked to respond – Applicant asked who made complaint, child’s name, and when incident said to have occurred – Applicant told date incident occurred but not time, child’s name, or name of complainant - Applicant denied assaulting child - Meeting lasted between 7 to 15 minutes – W adjourned meeting for 5 minutes – Following adjournment applicant summarily dismissed - Authority found W did not have all relevant information available to him before made decision to summarily dismiss – Found respondent breached its good faith obligations by not providing applicant with all relevant information or opportunity to comment on it before dismissal – Found W accepted C’s allegations at face value and did nothing to test her version of events by, for example, checking with other possible witnesses – Found disciplinary process breached natural justice requirements – Found investigation fundamentally flawed – Found respondent breached own procedures as outlined in staff handbook – Found applicant not advised of, or given right to exercise, right to representation – Found way in which allegation raised with applicant deprived her of opportunity to properly respond - Found W predetermined outcome – Found W improperly influenced by concerns about applicant’s prior conduct which had not been previously raised with her and which were without merit - Found pervasive and fundamental flaws so serious that legitimacy and correctness of respondent’s conclusion that serious misconduct occurred called into question – Found could not say that had respondent adopted and applied fair and reasonable process, would still have come to same conclusion it did – Found respondent’s actions not those of fair and reasonable employer - Dismissal unjustified – Remedies – No contributory conduct – Found because of deficiencies with investigation and dismissal Authority not satisfied on balance of probabilities applicant contributed in blameworthy way to situation giving rise to grievance - Authority satisfied applicant properly mitigated loss – Applicant sought 8 weeks lost remuneration – Authority satisfied applicant lost 8 weeks remuneration as result of unjustified dismissal – Respondent to pay applicant $8,000 reimbursement of lost wages - Found despite having worked for respondent for 5 and a half years applicant’s employment summarily terminated after 7 to 15 meeting – Found applicant subsequently humiliated to be given copy of C’s complaint by former colleague who had found it lying on ground outside respondent’s premises after dismissal – Found allegations against applicant so serious amounted to criminal allegations – Found allegation of assault on child by early childcare teacher would leave inevitable taint on applicant’s career and reputation – Found applicant sought medical attention and reported trouble sleeping and elevated blood pressure - $8,500 compensation appropriate - PENALTY – Authority declined to award penalty for breach of employment agreement or breach of good faith – Authority viewed matters as part of unjustified dismissal claim for which applicant awarded remedies - Found no jurisdiction to award penalty for breach of s103A Employment Relations Act 2000 that applicant requested - Early Childhood Teacher |
| Result | Application granted ; Reimbursement of lost wages ($8,000) ; Compensation for humiliation etc ($8,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s4(1A)(b);ERA s4(1A)(c);ERA s103A;ERA s124;ERA s128;ERA Second Schedule cl10 |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415;Honda NZ Ltd v NZ (with exceptions) Shipwrights etc Union [1990] 3 NZILR 23 ; [1991] 1 NZLR 392 ; (1990) 3 NZELC 98,130 ; (1990) ERNZ Sel Cas 855;Lewis v Howick College Board of Trustees [2010] NZEmpC 4;Toll New Zealand Consolidated Ltd v Rowe [2007] ERNZ 840;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 24 |
| PDF File Link: | aa 478_10.pdf [pdf 65 KB] |