| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 160 |
| Hearing date | 1 Mar 2011 |
| Determination date | 19 April 2011 |
| Member | E Robinson |
| Representation | P Howard-Smith ; D France |
| Location | Auckland |
| Parties | Marks v University of Auckland |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant spelt out obscenity in records and failed to complete maintenance records correctly - Applicant responsible for maintenance and building compliance matters – Applicant covered for colleague who had data entry role – Maintenance records available to third parties including Ministry of Health and council in event of serious incident – Respondent sent email same day to employees reminding employees to fill out work records correctly – Respondent later sent applicant letter outlining allegations – Noted failure to record work orders correctly and intentional obscenities in work records – Manager requested applicant attend meeting to consider whether suspension appropriate – Applicant acknowledged responsible for entries, apologised and assured respondent would not happen again – Respondent advised applicant was treating matter as serious misconduct and termination possible – At later meeting applicant shown email referring to his negative and offensive attitude – Claimed was not given adequate opportunity to respond and denied allegations about attitude – Applicant offered to attend anger management course – Respondent advised applicant termination was appropriate outcome – Respondent claimed applicant had not offered sufficient explanation to warrant reducing serious misconduct allegations and had been serious breach of trust and confidence - Respondent claimed applicant held position of responsibility and deliberately corrupted respondent’s system – Both parties accepted unlikely a third party would access records – Authority found fair and reasonable employer would not have regarded applicant’s actions as serious misconduct meriting summary dismissal – Authority noted entries could be amended and offensive entry not directed at particular person – Noted also applicant had admitted offence, apologised and assured respondent would not happen again – Authority did not accept applicant had deliberately corrupted system and found applicant not fully informed of deliberate corruption allegations – Found late introduction of email commenting on applicant’s attitude unfair to applicant – Authority noted applicant failed to follow reasonable instructions and failed to rectify entries after notification – Found redeployment or demotion were options also open to respondent – Found applicant unjustifiably dismissed – REMEDIES - Found applicant should be reinstated – Authority not satisfied applicant made vigorous effort to mitigate loss of employment as applicant failed to provide evidence – Found applicant should be paid notice period equivalent – No reduction in remedies for contributory conduct as applicant did not seek compensation and lost wages not awarded – Facilities Administrator |
| Result | Application granted ; Reinstatement ordered ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103(1)(a);ERA s103(1)(b);ERA s 124;ERA s125 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/a “Medismart Ltd”) (2009) 6 NZELR 530;NZ (with exceptions) Food Processing IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Case 582;Radius Residential Care Limited v McLeay unreported, Ford J, 3 November 2010, WRC 9/10;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 19 |
| PDF File Link: | 2011_NZERA_Auckland_160.pdf [pdf 55 KB] |