| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 46 |
| Hearing date | 31 Mar 2011 |
| Determination date | 08 April 2011 |
| Member | P Cheyne |
| Representation | A Sharma ; M Kirk |
| Location | Nelson |
| Parties | McDonald v Porse In-Home Childcare (NZ) Ltd |
| Summary | INJUNCTION – Application for interim reinstatement – Applicant sought interim reinstatement after dismissal for serious misconduct – Applicant used work car branded with company name on camping holiday – Respondent received three written complaints about applicant’s behaviour at camping ground – Name of complainants, details of prior connection with respondent and circumstances surrounding putting complaints into writing not disclosed to applicant – Authority found inquiries limited to reading complaints rather than interviewing complainants – Found arguable fair and reasonable employer would not have limited inquiries – Witness did not recall applicant threatening to throw water on another group’s tent and claimed complainants embellished situation to made it appear worse – Found significant differences between complainants’ accounts involving applicant verbally abusing children at campground – Complainants thought applicant’s conduct reflected badly on respondent – Respondent concluded children yelled at and frightened by applicant – Respondent concluded sufficient relationship between conduct at campground and nature of respondent’s business to damage or potentially damage respondent’s business reputation – Respondent concluded applicant breached obligations to respondent and breach amounted to serious misconduct – Found arguable conclusions not ones of fair and reasonable employer – Found conclusion applicant yelled at children depended on accepting description given by one complainant – Other complainants merely referred to tone and bad language – Found use of bad language on holiday did not amount to serious misconduct justifying dismissal – Respondent referred to applicant’s propensity for swearing and being loud and aggressive – Found applicant never received written communication which strongly criticised applicant’s behaviour – Found strongly arguable fair and reasonable employer would have disclosed written communication to applicant to allow applicant opportunity to respond – Parties disputed whether applicant contractually entitled to work from home – Respondent claimed applicant breached contractual obligations by not working 40 hours per week – Found fair and reasonable employer would have first resolved dispute before dealing with matter as misconduct – Found two colleagues concerned whether could work with applicant – Found possible applicant may establish personable grievance – Found arguable case for reinstatement – Applicant claimed would suffer financially pending determination of personal grievance – Found applicant gained temporary work – Found not suggested respondent unable to meet any compensation awards – Found possible staff would leave if applicant reinstated – Found balance of convenience favoured respondent – Found even if grievance established, may not be practicable to reinstate applicant – Found applicant’s case for permanent reinstatement not so strong that applicant should be reinstated in interim – Interim reinstatement declined |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s125 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Christchurch_46.pdf [pdf 26 KB] |