| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 43 |
| Hearing date | 10 Mar 2011 |
| Determination date | 23 March 2011 |
| Member | M B Loftus |
| Representation | M Guest, D Brett ; K Smith |
| Location | Dunedin |
| Parties | Hemopo v Carenz (Est 1954) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed dismissal unjustified - Respondent operated Drug Treatment Units (“DTU”) which provided programmes for prison inmates pursuant to contract with Department of Corrections (“Corrections”) - Applicant offered position as counsellor in DTU at a prison - Condition of employment that applicant obtain favourable clearance of Ministry of Justice security form and had ability to maintain clearance for duration of employment – Before applicant signed employment agreement charged with obtaining by deception – Police advised applicant could be eligible for diversion - Applicant took bar code from one garden hoe and placed it on hoe of greater value – Applicant then proceeded to checkout and bought more expensive hoe at lesser price - Applicant claimed day events took place was first anniversary of accidental death of brother in law and this affected him badly and he was not performing normally – Applicant reported to work two weeks later as arranged - Applicant advised respondent had been charged with theft when asked to sign employment agreement following day – Respondent had applicant sign employment agreement while sought advice about situation - Next day applicant handed letter stating was being dismissed – Applicant subsequently granted diversion - Authority noted that as at 1 April 2011 test for justification in s103A Employment Relations Act 2000 (“ERA”) to be amended to be whether employer’s actions were what fair and reasonable employer could have done rather than would – Noted s103A ERA amended to include list of factors Authority and courts must consider when applying test - Found while list of factors not yet law did succinctly codify that which case law had, for many years, considered basic requirements of fair process - Authority found respondent did not carry out fair process – Found respondent never put real concerns to applicant, namely those about offending compromising applicant’s ability to model transformational change and be effective counsellor – Found respondent never told applicant of fear that recent nature of offending would have meant Corrections would preclude access to prison, thus frustrating employment agreement - Found applicant never given opportunity to provide explanation, rather simply advised dismissal decision made – Found respondent not capable of basing decision to dismiss on such a deficient investigation – Found at time of dismissal respondent did not know exact nature of applicant’s offending which would have made it hard to conclude applicant had committed serious misconduct or that actions irreparably impaired ability to work for respondent - Respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - Authority accepted respondent’s evidence applicant’s actions undermined programme’s integrity and brought suitability for role into question – Found possible Corrections would have withdrawn applicant’s access rights to prison - Authority found had respondent conducted proper and complete investigation dismissal would have resulted - Found reimbursement of lost wages to be limited to period required for completion of full and proper investigation – Reimbursement of one weeks lost wages awarded – Found applicant did not contribute to respondent’s procedural failures, however, had committed minor crime – Found reduction in award for reimbursement of lost wages dealt with issue of contribution - Authority had no doubt dismissal caused harm – Found harm aggravated by applicant being precluded from answering allegations against him - $5,000 compensation appropriate - Counsellor |
| Result | Application granted ; Reimbursement of lost wages ($1,057.69) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;Chief Executive of Unitec Institute of Technology v Henderson (2007) 8 NZELC 98,793 ; (2007) 4 NZELR 418;Waitakere City Council v Ioane [2004] 2 ERNZ 194 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Christchurch_43.pdf [pdf 42 KB] |