| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 65 |
| Hearing date | 27 Jan 2011 |
| Determination date | 18 February 2011 |
| Member | D King |
| Representation | J Dewar ; A Shaw |
| Location | Hamilton |
| Parties | Cooper v Solid Energy New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Sexual Harassment – Serious Misconduct – Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged by respondent – Respondent claimed dismissed applicant for using contractor’s vehicle without permission and without training and compromised health and safety, and for sexually harassing fellow employee (“X”) – Applicant claimed used ute without warrant of fitness and subsequently contractor’s vehicle to try to extricate vehicle bogged down in grassy area – Applicant returned to work following day to clean vehicles – Applicant invited to attend disciplinary meeting – Respondent claimed applicant tried to hide incident – Respondent claimed applicant damaged respondent’s reputation with contractor and undertook tasks not performed previously and failed to ask for help – In interim, sexual harassment complaint made against applicant relating to text message sent – Applicant claimed text message not sexual or intended for recipient – Applicant suspended – Applicant attended disciplinary meeting – Applicant advised not to answer questions asked by respondent during meeting – Respondent claimed applicant failed to observe health and safety procedures, management of which constituted 50 percent of applicant’s role – Respondent claimed applicant harassed X and actions brought respondent into disrepute – Authority found respondent entitled to conclude applicant tried to cover up incident with vehicles by returning to work on day off and cleaning vehicles – Found respondent entitled to conclude applicant intended to send text message to X and text message upsetting and distressing to X – Respondent claimed considered alternatives to dismissal – Applicant dismissed – Found no disparity of treatment – Found respondent entitled to conclude applicant committed serious misconduct – Dismissal justified – UNJUSTIFIED DISADVANTAGE – Applicant not given opportunity to obtain representation in relation to suspension – Found applicant did not claim adversely affected by suspension – Found respondent breached employment agreement – No remedies awarded as no disadvantage shown – GOOD FAITH – Respondent claimed applicant breached good faith by failing to participate fully in investigation process – Found applicant’s failure to participate fully in investigation process seriously disadvantaged respondent in completing process – Found respondent able to find applicant committed serious misconduct because questions not answered – Found no breach by respondent in failing to provide information in timely manner – Site Manager |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Garden v Lovich Floor Decor Ltd unreported, Shaw J, 6 Nov 2000, AC 86/00;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Auckland_65.pdf [pdf 33 KB] |