| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 62 |
| Hearing date | 28 Oct 2010 - 28 Jan 2011 (2 days) |
| Determination date | 26 April 2011 |
| Member | E Robinson |
| Representation | B Buckett ; G Gowland |
| Location | Wellington |
| Parties | Smith v Air2there.com (2008) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged when suspended by respondent – Applicant attended informal meeting with Chief Executive Officer of respondent company (“CEO”) in which performance concerns discussed – Applicant claimed simply handed letter advising of suspension – CEO alluded to issues of flight safety as reason for suspension and alleged applicant dishonest in communications following meeting – CEO claimed applicant failed to complete and return occurrence report however matter not raised prior to formal disciplinary meeting – CEO discussed pornographic website viewing in workplace and missing funds – CEO refused request applicant return to work – CEO claimed suspension pending disciplinary investigation into serious misconduct provided for in employment agreement (“EA”) – Authority found applicant provided with EA but never signed and returned EA – CEO claimed applicant agreed to go on garden leave – Found applicant suspended – Found applicant should have been provided with access to pertinent information about decision to suspend and opportunity to comment on information prior to decision to suspend – Found applicant given no prior indication about what informal meeting about and not given opportunity to bring support person – Found suspension predetermined by letter and applicant unable to comment on alternatives to suspension – Found respondent failed to follow own internal disciplinary rules in EA – Found suspension continued after applicant requested to return to work – CEO reluctant to allow applicant to return due to safety issues – Found second letter raised further issues of honesty and viewing pornographic material on internet but did not refer to any safety concerns – Found respondent employed applicant with full knowledge of safety incident which took place when applicant manager of respondent company – Found respondent could not rely on safety issue to justify suspension two years later – Found no action taken into later safety incidents – CEO relied on stress of disciplinary proceedings as safety concern justifying suspension – Found stress did not justify suspension – Found applicant’s request to postpone disciplinary meeting did not support decision to suspend – Found fair and reasonable employer would not have suspended applicant – Found applicant unjustifiably disadvantaged in employment – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed – Alleged applicant accessed pornographic websites at work, flew too soon after consuming alcohol, stole petrol, and treated others rudely, fostering negative attitude – Applicant claimed provided explanations at time issues raised and considered matters closed – Found in situation where no further action taken by employer, employee entitled to believe matters resolved – Found failure to account for money received by applicant was pertinent to decision to dismiss – Found fair and reasonable employer would not have relied on incident as justification for dismissal because no formal investigation occurred at time of incident – Found no substantiated safety issues outstanding at time of dismissal – Found disregard for acceptable standards of professionalism did not constitute substantive justification for dismissal as issue not raised prior to suspension meeting – Found respondent did not adhere to basic requirements of procedural fairness in dismissing applicant – Found applicant not provided with job description or outline of employer’s expectations – Found applicant not subject to performance reviews or told performance unsatisfactory – Found applicant not provided with prior to informal meeting might be suspended and not provided with opportunity to bring support person or deflect decision to suspend – Found applicant not provided with explanation to refute allegations – Found no unbiased consideration of alternatives to dismissal – Dismissal unjustified – REMEDIES – Applicant sought reinstatement to former position – Found reinstatement not practicable due to reduced degree of trust and confidence in applicant – 30 percent contributory conduct – Applicant admitted tardy in providing reports and responding to emails – Found several occasions on which applicant asked to take action but failed to do so – Reimbursement of lost wages appropriate – Found applicant suffered damage to professional reputation as pilot - $8,400 compensation appropriate – Operations Manager/Chief Pilot |
| Result | Applications granted ; Contributory conduct (30%) ; Reimbursement of lost wages (parties to determine quantum) ; Compensation for humiliation etc ($12,000 reduced to $8,400) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s125;Civil Aviation Act 1990 s13 |
| Cases Cited | Ashton v Shoreline Hotel [1994] ERNZ 421;Fuiava v Air New Zealand Limited [2006] ERNZ 806;Kereopa v Go Bus Transport Ltd [2010] ELB 2;Radio NZ v Snowdon [2003] ERNZ 12;Tawhiwhirangi v Attorney-General in respect of Chief Executive Department of Justice [1993] 2 ERNZ 546 |
| Number of Pages | 21 |
| PDF File Link: | 2011_NZERA_Wellington_62.pdf [pdf 57 KB] |