| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 26 |
| Hearing date | 12 Oct 2010 |
| Determination date | 21 February 2011 |
| Member | P R Stapp |
| Representation | P Drummond ; D Traylor |
| Location | Palmerston North |
| Parties | Field v Chief Executive of the Department of Corrections |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant dismissed following investigation into allegations of sexual harassment made against him by colleague (“X”) - Applicant denied allegations and claimed respondent provided insufficient detail and specificity of allegations during investigation and disciplinary process - Respondent appointed investigator to investigate complaints – Investigator produced report – Report found was evidence to show applicant engaged in sexual harassment and threatening, abusive, and insulting behaviour – report also found applicant may have breached respondent’s code of conduct - Assistant regional manager (“M”) advised applicant had accepted facts and findings of report – M advised would make decision on whether behaviour constituted serious misconduct and if so appropriate penalty – M concluded behaviour was serious misconduct and applicant dismissed – M claimed when stated accepted facts and findings did not mean necessarily believed them but had decided not to send matter for further investigation – Authority concluded M had accepted facts and findings from report – Found fair and reasonable employer would have detailed allegations that had accepted from report so was clear what allegations applicant facing - Found applicant not given opportunity to comment on report’s findings before M accepted them - Found report’s findings was “threatening and abusive and insulting behaviour” not backed up with what evidence being relied on – Found insufficient evidence and reasoning provided for how respondent concluded had been sexual harassment and breach of code of conduct - Found one of behaviour’s complained of did not amount to sexual harassment in terms of respondent’s policy - Found respondent did not apply test as written in own policy - Found respondent unable to show could establish applicant guilty of serious misconduct to necessary standard – Found where was serious allegation sufficient proof of allegation to high standard needed – Found evidence available at time based on number of incidences that were not sufficiently detailed and lacking in first hand accounts of harassment by applicant - Dismissal unjustified - Remedies – No contributory conduct - Applicant sought reinstatement - Found evidence did not sufficiently establish respondent’s claim reinstatement impracticable - Found applicant continued to work during approximately 10 month investigation process – Found applicant and X able to be separated in workplace – Found applicant showed willingness to cooperate and act appropriately and attend any training required - Reinstatement ordered – Applicant sought reimbursement of 30 weeks lost wages – Applicant claimed amount sought took into account failure to fully mitigate loss - Authority found amount to be reduced further to accurately reflect applicant’s failure to fully mitigate losses - Respondent to pay applicant 23 weeks reimbursement of lost wages - Authority accepted applicant hurt by dismissal – Found dismissal had financial impact on applicant - $8,000 compensation appropriate - Authority accepted applicant’s claim for lost benefit of superannuation payments – Found applicant to be reinstated, loss directly attributable to dismissal, and was entitlement applying before dismissal – Parties to calculate sum owing based on 23 weeks wages awarded - Acting Principal Corrections Officer |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages ($34,853.84) ; Compensation for humiliation etc ($8,000) ; Loss of benefit (Superannuation)(23 weeks) ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 27 |
| PDF File Link: | 2011_NZERA_Wellington_26.pdf [pdf 72 KB] |