| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 52 |
| Hearing date | 7 Dec 2010 - 8 Dec 2010 (2 days) |
| Determination date | 10 February 2011 |
| Member | E Robinson |
| Representation | D Grindle ; S McKechnie |
| Location | Whangarei |
| Parties | Lamb v The Commissioner of Police |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed intoxicated person arrested (“T”) – Alleged applicant punched and choked T in back of police car – Alleged T spat blood and mucus on walls and glass screen at police station and refused to clean up – Alleged applicant used T’s jersey to wipe up mess – Alleged applicant failed to include use of force on T on job sheet – Applicant included use of force on record of events (“TOR”) – TOR not completed until later date – Criminal investigation held into incident with T – Applicant acquitted of criminal charges – Applicant informed of disciplinary investigation into incident with T – Disciplinary investigation undertaken by General Manager of Human Resources (“A”) – A reviewed relevant documents, visited station where incident occurred, interviewed police officers and issued detailed report – A concluded applicant breached Code of Conduct and actions constituted serious misconduct – Disciplinary hearing convened and report considered – Applicant dismissed – Applicant claimed newspaper had tape recordings of negative comments about applicant – Authority found no evidence of existence of tape – Found no evidence of pre-determination – Found although A previously involved with applicant in disciplinary context, no evidence of bias – Found respondent carried out fair and reasonable investigation and followed robust process – A believed real risk applicant would repeat behaviour – Panel member (“R”) considered relevant applicant experienced employee under supervision – R believed onus on applicant to use sound judgment to protect reputation – R believed applicant breached Code of Conduct in not reporting matter to supervisor – R claimed applicant’s failure to use sound judgment had potential to bring Police into disrepute – Found applicant did not offer credible explanation about failure to complete TOR at end of shift – Found actions contributed to finding of serious misconduct – R concluded differences between job sheet and TOR deliberate because applicant under supervision – Found applicant did not provide credible explanation as to why no details included of punch on job sheet – Found fair and reasonable employer would conclude applicant failed to exercise good judgment in manner of completing job sheet – Applicant claimed advised by another police officer to use T’s jumper to clean up mess – R concluded police officer in question considerably less experienced than applicant – Found fair and reasonable employer would have concluded matter constituted serious misconduct – Found previous complaints could be taken into account in making decision to dismiss – Respondent rejected Applicant’s suggestion could work in non-frontline position as alternative to dismissal due to history of poor judgment – Found loss of trust and confidence irreparable – Found respondent acted as fair and reasonable employer in dismissing applicant – Dismissal justified – Police Officer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(a);ERA s103A;Policing Act 2008 s20(2);Policing Act 2008 s56 |
| Cases Cited | Air New Zealand v Hudson [2006] ERNZ 415;Butcher v OCS Limited [2008] ERNZ 367;Fuiava v Air New Zealand Limited [2006] ERNZ 806;New Zealand Tramways etc IUOW v Auckland Regional Council [1992] 2 ERNZ 883;NZ (with exceptions) Food Processing etc IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35 |
| Number of Pages | 27 |
| PDF File Link: | 2011_NZERA_Auckland_52.pdf [pdf 84 KB] |