| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 51 |
| Hearing date | 8 Dec 2010 - 28 Jan 2011 (6 days) |
| Determination date | 06 May 2011 |
| Member | R Larmer |
| Representation | A Sharma ; G Barkle |
| Location | Nelson |
| Parties | Browne v Talley's Group Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Respondent conducted drug search on fishing vessel applicant worked on – Respondent had contractual right to conduct search – Drug dog took particular interest in applicant’s luggage and investigation conducted – Private investigator (“M”) recommended applicant be suspended and applicant suspended indefinitely without pay – Authority found suspension not reviewed until disciplinary meeting – Found respondent did not consider options other than suspension without pay – Found respondent did not consider how long suspension should be for and did not give applicant real or genuine opportunity to be heard before suspended – Respondent had prejudicial information not disclosed to applicant – Personnel Manager (“R”) claimed crew member named those who used drugs – Authority preferred R’s evidence – R claimed crew member named applicant as having used P on board – Found no evidence applicant named as P user – Found information likely influenced suspension decision – Found information should have been disclosed so applicant had opportunity to comment on – Found failure was breach of good faith – Found no good reason for indefinite suspension – Found applicant not given opportunity to have representative present – Found fair and reasonable employer would not have taken those actions – Unjustified disadvantage – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed constructively dismissed at conclusion of disciplinary meeting – Respondent accepted applicant constructively dismissed but dismissal justified based on serious misconduct – M failed to interview others who allegedly were drug users and knew about drug use on vessel – Applicant attended disciplinary meeting without representative – Found allegations put to applicant vague and non-specific – Found information should have been put to applicant to comment on – Found respondent’s actions in unilaterally adjourning applicant’s disciplinary meeting at late stage not action of fair and reasonable employer – Found applicant already incurred cost of travelling to meeting and had been without income for five weeks – Found respondent not receptive to providing applicant financial support or making alternative arrangements – Found applicant had no choice but to proceed with disciplinary meeting because could not afford accommodation or more flights – Found applicant effectively deprived of right to representation due to adjournment – Found respondent rejected applicant’s request for drug testing without properly considering proposal and had no good reason for rejection – Found basic inquiries into serious misconduct not made despite considerable resources – Found respondent did not have good reasons to prefer some witnesses credibility over others – Found respondent had obligation to ensure clear about what information relied on to support finding – Found fair and reasonable employer would have made inquiries into crew member’s allegations – Found respondent failed to keep accurate records of disclosures – Found matter not approached with open mind – Found at no point were respondent’s actions those of fair and reasonable employer – Found applicant treated extremely unfairly – Found procedural errors significant – Dismissal unjustified – REMEDIES – No contributory conduct – No credible or reliable evidence applicant used drugs – Found applicant took steps to mitigate loss – Found applicant entitled to reimbursement of lost wages and any bonuses – Found insufficient evidence for compensation for loss of benefits claim – Parties to determine if any entitlements due – Found applicant suffered significant hurt, humiliation and distress as result of unjustified suspension and dismissal – $20,000 compensation appropriate – Interest payable – PENALTY – Applicant sought penalty for breaches of good faith obligations – Found breaches serious, deliberate and sustained – $2,500 penalty appropriate – Factory Hand |
| Result | Application granted ; Reimbursement of lost wages and bonuses (parties to determine quantum) ; Interest (8.4%) ; Compensation for loss of benefits (parties to determine quantum if any) ; Compensation for humiliation etc ($20,000) ; Penalty ($2,500)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(a);ERA s4(1A)(b);ERA s4(1A)(c);ERA s103A;ERA Second Schedule cl11;Judicature (Prescribed Rate of Interest) Order 2008;Judicature Act 1908 s87(3) |
| Cases Cited | Affco NZ Ltd v Nepia & Anor unreported, Shaw J, 28 Sept 2007, WC 25/07;Airline Stewards and Hostesses of NZ IUOW v Air New Zealand Limited [2006] ERNZ 415;Air New Zealand v V [2009] ERNZ 185;C v Air New Zealand [2011] NZEMPC 27;Food Processing etc IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35;George v Auckland Regional Council [2010] ERNZ 350;Honda NZ Ltd v NZ Shipwrights etc Union [1990] 3 NZILR 23;Jesudhass v Just Hotel Limited [2006] ERNZ 173;Mercer v Maori Television Service [2010] NZEMPC 133;Lewis v Howick College Board of Trustees [2010] NZEMPC 4;Sefo v Sealord Shellfish Ltd [2008] ERNZ 178;Smith v Life to The Max Horowhenua [2010] NZEMPC 152;X v ADHB [2007] ERNZ 66 |
| Number of Pages | 42 |
| PDF File Link: | 2011_NZERA_Christchurch_51.pdf [pdf 129 KB] |