| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 66 |
| Hearing date | 30 Nov 2010 - 29 Mar 2011 (2 days) |
| Determination date | 02 May 2011 |
| Member | G J Wood |
| Representation | R Nuri (in person) ; R Burt |
| Location | Wellington |
| Parties | Nuri v Chief Executive of Te Puni Kokiri |
| Summary | BREACH OF CONTRACT - UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious misconduct - Applicant claimed dismissal unjustified, respondent breached employment agreement and that suffered unjustified disadvantage - Claimed never behaved dishonestly or fraudulently, but that was genuinely on sick leave over pre-Christmas period, did not deliberately smash mobile phone, and in any event respondent did not abide by process mandated by employment agreement when coming to decision to dismiss - Applicant’s manager (“M”) had policy that all staff to phone her personally as soon as practicable on day would be away sick – Applicant texted M stating had migraine – M became aware had been social function at applicant’s home night before - Applicant asked around and told applicant had indicated would not be coming back before Christmas – M found applicant’s desk was clear and camera missing – Next day M unable to contact applicant on work cellphone – M emailed applicant requesting he call her – Applicant emailed M stating still ill, had bad earache and was hoping to go to doctor, claimed dropped phone, screen smashed and not able to call out – Claimed had camera as needed it over break – M emailed applicant requesting return camera and would require medical certificate if was to be away for rest of week – M discovered from IT that applicant still using phone and records showed applicant using phone out of town – Applicant did not return to work before Christmas and were issues with return to work after break - Respondent began investigative and disciplinary process resulting in applicant’s dismissal - Authority found respondent did not investigate allegations into applicant’s behaviour and determine outcome in way its policies and thus parties’ employment agreement required – Found while slight deviations from procedural perfection may be excused, in this case respondent varied significantly from own processes - Found respondent failed to produce written report summarising evidence and providing view on whether allegations had been upheld – Found no formal letter sent to applicant providing him with report and advising on preliminary view and potential disciplinary actions – Found therefore applicant unable to comment on preliminary view and have comments considered – Found respondent failed to provide written advice outlining that dismissal being considered and reasons why – Found again therefore applicant not given opportunity to comment – Found while applicant not unaware of seriousness of disciplinary process not offered full opportunity to comment on it as was required – Found respondent’s offers to reconsider decision after dismissal were too late – Found at that point applicant entitled to accept been dismissed and pursue claim accordingly – Found as possible that had applicant admitted fault may not have been dismissed Authority could not say with any certainty dismissal inevitable - Dismissal unjustified - Remedies – 100 percent contributory conduct - Found was clear applicant did suffer ear injury – Issue was whether effected him to extent affected ability to work and therefore whether sick leave claim was genuine – Authority found applicant’s actions inconsistent with level of sickness claimed - Authority determined applicant was able to attend work on three days before Christmas but chose not to for pressing family reasons – Found such deception was at high end of the scale because of breach of trust and confidence involved, particularly as maintained position throughout investigation process - Found applicant contributed entirely to situation that gave rise to grievance – No remedies to be awarded - Editor |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Alofa v Aotea Centre Board of Management unreported, Travis J, 30 Jul 2001, AC 50/01;Griffith v Sunbeam Corporation unreported, Couch J, 28 Jul 2006, WC 13/06;John v Rees [1970] Ch 345;Madden v NZ Railways Corporation [1991] 2 ERNZ 690;Managh t/a Managh & Associates and Cafe Down Under Ltd v Wallington [1998] 2 ERNZ 337 ; [1998] 3 NZLR 546 ; (1998) 5 NZELC 95,827;Purchase v John Sands NZ Ltd unreported, Colgan J, 13 Sep 1996, AEC 57/96;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 15 |
| PDF File Link: | 2011_NZERA_Wellington_66.pdf [pdf 48 KB] |