| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 182 |
| Hearing date | 24 Feb 2011 - 25 Feb 2011 (2 days) |
| Determination date | 05 May 2011 |
| Member | R Arthur |
| Representation | P Blair ; P Swarbrick |
| Location | Rotorua |
| Parties | Behan-Kitto v New Zealand Post Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant (Mr Behan-Kitto - employee) claimed unjustifiably dismissed by respondent (New Zealand Post Limited - employer) - Applicant previously placed on garden leave following order for interim reinstatement pending determination of personal grievance - Respondent advised applicant of allegations possibly amounting to sexual harassment - Disciplinary meeting held - Applicant claimed developed friendship with complainant (A") - Applicant refused to provide copies of internet-based communication with A - Respondent claimed complaint received from another customer ("B") alleging approached by applicant on driveway rather than delivering letters to letterbox and contacted via dating website - Further disciplinary meeting held - Applicant alleged attacked outside A's house - A stated member of family possibly involved in attack - Applicant assigned duties at Post branch premises rather than delivery round work - Further inquiries made into complaints - Respondent advised applicant of further allegations being investigated - Allegations were inappropriate behaviour, sending sexually explicit text messages to A, acting inappropriately towards A and inappropriate behaviour and contact with B - Respondent referred to similar, historical complaints - Applicant dismissed following disciplinary meeting - Respondent claimed seven allegations amounted to minor misconduct, and sending sexually explicit text messages to A amounted to serious misconduct - Authority found respondent's inquiry neither full nor fair - Found respondent should have taken greater care to establish evidential basis for finding of serious misconduct - Found written report on interview with complainants contained no reference to identification of applicant as sender of text messages - Respondent solely relied on A saying applicant sent text messages - Found no satisfactory explanation as to why A not mentioned text messages at earlier interview or in further complaint to respondent - Applicant claimed did not send text messages - Found respondent did not establish to necessary standard of proof that applicant's answer not correct - Found similar lack of rigour in respondent's consideration of reliability and motivation of B's complaint - Found respondent made no inquiry into why B's letter of complaint pretended B unsure of applicant's name when B knew much more about applicant - Found respondent reached conclusion complaints of A and B just tip of iceberg and applicant's behaviour very serious risk to respondent and customers - Respondent representative Mr Flynn ("F") viewed applicant as sexual predator - Found respondent breached obligations to disclose information relevant to continuation of applicant's employment and give applicant opportunity to comment on information before decision to dismiss made - Found even if respondent did not rely on F's opinion in making decision to dismiss, decision flawed by reliance on F's factual conclusions reached from interviews with complainants - Found inquiry inadequate and based on assumptions - Found fair and reasonable employer could not, on information available to respondent and without further inquiry, have concluded applicant sent text messages - Found respondent not unjustified in decisions other allegations substantiated and amounted to minor misconduct - Found fair and reasonable employer would have dealt with incidents with written warnings rather than dismissal - Dismissal unjustified - REMEDIES - Found applicant withheld information from respondent and failed to comply with instructions - Found reinstatement no longer primary remedy - Found respondent's lack of trust and confidence in applicant relevant - Found although applicant not directly supervised on round, role performed in public view - Found complaints would be made if job not performed properly - Authority not persuaded reinstatement impractical or unreasonable - Reinstatement ordered - Award for reimbursement of lost wages reduced by 100 percent for contributory conduct - Found limited evidence in support of compensation for emotional distress - Found evidence of injury to feelings at lower end of scale - Found link between dismissal and distress which arose from being labelled sexual harasser on basis of inadequate evidence - Compensation award reduced by one third for contributory conduct - $2,000 compensation appropriate - Postie" |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages (reduced by 100%) ; Compensation for humiliation etc ($3,000 reduced to $2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s124;ERA s174;ERA Second Schedule cl10 |
| Cases Cited | Z v New Zealand Post Limited unreported, R Arthur, 17 Dec 2010, AA 516/10 |
| Number of Pages | 19 |
| PDF File Link: | 2011_NZERA_Auckland_182.pdf [pdf 55 KB] |