| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 232 |
| Hearing date | 2 Mar 2011 |
| Determination date | 01 June 2011 |
| Member | K J Anderson |
| Representation | S Scott ; D White |
| Location | Hamilton |
| Parties | Ford v Te Awhi Whanau Charitable Trust |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – New Project Team Leader (“T”) appointed during applicant’s period of absence and applicant required to report to new person instead of National Director (“B”) – Authority found tension in working relationship between applicant and B – B viewed applicant’s actions during telephone conversation as insubordination – Applicant required to undertake counselling and take leave following incident with colleague – Found discussions about changes to terms and conditions of employment but unclear whether any changes occurred – Applicant invited to attend meeting – Applicant claimed informed by T that B unhappy with accounts prior to meeting – T claimed meeting was routine catch up – Applicant claimed blamed for discrepancies and failures in accounting records – Found no reference in meeting notes to alleged concerns – Applicant told T that B misappropriated funds – T claimed applicant continued with tirade against B and situation tense – Applicant ignored T’s request to stop outburst – Applicant requested to attend disciplinary meeting – Respondent claimed applicant failed to produce any evidence to support allegations made against B – Respondent claimed applicant failed to acknowledge extent of incident – T claimed applicant unable to control behaviour and respond appropriately to T’s directions – Respondent claimed because applicant unable to give satisfactory explanation for outburst applicant guilty of serious misconduct – Applicant dismissed – Found not fair and reasonable for respondent to revisit earlier incidents or raise matter applicant did not complete counselling as matter never raised with applicant at time – Found applicant entitled to exercise legal right to pursue personal grievance and threat involving Inland Revenue misguided attempt to influence decision makers – Found overall evidence pointed to propensity for applicant to overreact to relatively innocuous circumstances – Found no disciplinary action taken against applicant for past incidents – Found behaviour to be viewed in isolation when considering appropriate sanction – Applicant claimed had ongoing concerns about B’s failure to provide receipts for expenses incurred by Northern Branch of respondent – Found decision to dismiss applicant fatally flawed – Found taking into account of previous incidents in deciding to dismiss applicant not action of fair and reasonable employer – Found respondent aware of applicant concerns about B and failed to resolve issue – Found B less than cooperative in providing receipts – Found applicant had genuine concern about B – Found fair and reasonable employer would have taken concern into account – Found respondent entitled to regard applicant’s conduct as serious misconduct warranting disciplinary sanction but conduct did not deeply impair basic trust and confidence between parties – Found dismissal procedurally flawed because not heard by decision maker, T – Found T did not balance information received from different parties before decision made – Found T obligated to give applicant final opportunity to present any matter applicant wished T to take into consideration – Dismissal unjustified – REMEDIES – 50 percent contributory conduct – Found applicant made serious allegation against B with no evidence – Found applicant refused to stop tirade or acknowledge behaviour inappropriate – Found applicant’s behaviour upset two colleagues – $5,265 reimbursement of lost wages appropriate – Found insufficient evidence to justify high compensation award – Found $3,000 compensation appropriate – National Administrator |
| Result | Application granted ; Contributory conduct (50%) ; Reimbursement of lost wages ($10,530 reduced to $5,265) ; Compensation for humiliation etc ($6,000 reduced to $3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Davis Trading Company Limited v Lewis [1993] 2 ERNZ 272;Irvines Freightlines Ltd v Cross [1993] ERNZ 424;Northern Distribution Union v BP Oil NZ Ltd [1992] 3 ERNZ 483 |
| Number of Pages | 16 |
| PDF File Link: | 2011_NZERA_Auckland_232.pdf [pdf 53 KB] |