| Summary |
UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant dismissed following investigation into allegation sleeping on the job - Respondent owned and operated retirement village - Respondent’s village manager (“H”) showing client round show apartment – H claimed talking to client while approached apartment door, unlocked door and moved through entrance area and kitchen – Claimed saw applicant slumped in semi sitting position on couch – Claimed applicant rose unsteadily from couch, appeared startled and red in the face – Claimed applicant left apartment without saying anything – H believed applicant had been asleep - Applicant claimed in apartment to water plants and sitting on couch waiting for water to drain so could mop up any spillage before left – Claimed when became aware of H and client, packed up tools, said good morning, and left - Next morning H sought explanation from applicant – Applicant denied was asleep – H consulted with human resources general manager (“T”) – H rang client to seek their impression of what happened - Applicant given letter requesting presence at investigation meeting with H and T – Applicant declined to have support person present – Meeting adjourned – When meeting resumed applicant told decision was close and asked if wished to add anything – Further adjournment – Applicant advised decision made and employment would be terminated for serious misconduct - Authority found was lack of clear distinction between H’s role as principal witness to incident, and line manager with responsibility for disciplinary matters – Found was no clear distinction in practice between roles of T and H in disciplinary process – Found such a distinction should have been made - Found bare fact that principal witness to incident may also be decision-maker in resulting disciplinary context not necessarily fatal to justification for dismissal – Found in small organisations such dual roles may be unavoidable although employer should remain open to possibility that observation interpreted wrongly – However, found respondent sufficiently resourced to allow manager with direct involvement in alleged incident of misconduct to step aside from disciplinary response for which manager would usually be responsible – Found H should have restricted herself to role of witness, and either T or another manager could have taken sole responsibility for disciplinary investigation and dismissal decision - Applicant’s claim dismissal predetermined rejected – However, found approach to questioning did indicate existing assumption applicant had been asleep - Found disciplinary process flawed - Authority concluded from evidence applicant asleep when H and client entered apartment - Found H had reasonable grounds for concluding applicant asleep - Found T entitled to believe H’s account – Found procedural flaws did not vitiate justification for dismissal - Dismissal justified - Gardener/maintenance person |