| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 198/10 |
| Hearing date | 11 Nov 2010 |
| Determination date | 14 December 2010 |
| Member | D Asher |
| Representation | P Jagose ; G Davenport |
| Location | Wellington |
| Parties | Routhan v The Plumbers, Gasfitters & Drainlayers Board |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant advised respondent conducting disciplinary investigation into applicant obtaining legal opinion – Subsequently investigation taken over by other concerns of respondent – Applicant advised respondent would carry out independent investigation into bullying and inappropriate conduct allegations, undermining health and safety of office staff, and failure to brief Board and Minister on issues of public safety – Applicant denied allegations – Respondent also concerned applicant’s solicitors held copies of files relating to staff and other Board business – Subsequently respondent obtained interim injunction requiring return of all documents – Independent investigator’s report concluded applicant’s treatment of senior staff member unfair, unacceptable behaviour towards other staff members, often used racist and malicious statements about other staff, attempted to suppress potentially serious health and safety information reckless and breached obligations to respondent – Applicant summarily dismissed – Respondent argued unjustified disadvantage claim not raised in time – Authority found reasons for unjustified disadvantage claim not clearly set out – Found respondent had no reasons to understand applicant raising grievance until non-particularised advice – Found unjustified allegations particularised in statement of problem not put to respondent in time – Found no claim for exceptional circumstances – Found respondent knew nothing of applicant’s serious concerns and had no opportunity to address them with view to resolving matters – Found without merit – Found applicant failed to properly engage respondent regarding concerns – UNJUSTIFIED DISMISSAL – Authority found dismissal grievance raised in time – Respondent concluded applicant deliberately placed respondent in position of uncertainty regarding material taken and actions entirely destructive of trust and confidence expected of senior employee – Found respondent’s actions those of fair and reasonable employer – Found evidence against applicant, objectively measured overwhelming – Found documents taken by applicant clearly not taken and withheld for genuine work reasons – Found no basis for applicant to defy respondent’s reasonable and lawful instruction – Found applicant’s reasons for actions rejected – Found no basis to challenge respondent’s process – Dismissal justified – Alternatively if dismissal unjustified applicant’s actions 100 percent contributory conduct – COUNTERCLAIM – Respondent sought special damages arising out of independent investigation and legal costs in relation to investigation process – Special damages declined – Found claim for indemnity costs appropriate application regarding consequences of applicant’s repeated refusal of fair and reasonable instruction – Found legal costs part of normal costs of business – Costs reserved |
| Result | Applications dismissed (Dismissal)(Disadvantage)(Counterclaim) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Plumbers, Gasfitters and Drainlayers Act 1976 s11;Plumbers, Gasfitters and Drainlayers Act 1976 s9(6);ERA s4(1A);ERA s103A;ERA s114;ERA s115 |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;Masonry Design Solutions Ltd v Bettany unreported, Colgan CJ, 21 Aug 2009, AC 30/09;Plumbers, Gasfitters and Drainlayers PGDB v Routhan and Chapman Tripp, unreported, WA 136/09, 18 September 2009 |
| Number of Pages | 16 |
| PDF File Link: | wa 198_10.pdf [pdf 56 KB] |