| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 281 |
| Hearing date | 24 Mar 2011 |
| Determination date | 29 June 2011 |
| Member | R Arthur |
| Representation | R Zhao, F Deliu ; J Douglas |
| Location | Auckland |
| Parties | Jiang v KVB Kunlun New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Respondent claimed applicant intentionally failed to carry out reasonable and proper instructions of management - Staff asked not to make contact with four named clients - Staff asked to acknowledge receipt and understanding of instructions - Applicant responded stating acknowledged and understood instructions - Applicant considered clients close friends who treated applicant almost as family - Dispute between parties as to whether respondent knew of close relationship between applicant and clients - Respondent informed employee in contact with applicants - Employees including applicant denied contact with clients - Applicant later explained denied contact because thought respondent referring only to contact while at work not in personal life - Applicant denied had coffee with client to police - Applicant admitted to respondent met with client but misunderstood police question as had yum cha not coffee with client - Respondent made clear to applicant restriction on contact with clients included business and personal contact - Applicant attended Chinese New Year and birthday celebrations with clients - Applicant claimed plans made in advance - Applicant suspended on full pay pending disciplinary meeting - Applicant dismissed - Authority found respondent within rights to curb and control staff contact with clients - Found although applicant became close friends with clients, relationship only developed through business connection - Found contact had potential to adversely affect respondent's business - Found instruction not to engage in contact lawful and reasonable whether it occurred within or outside working hours - Found reasonableness of instruction not changed even though no negative regulatory or police action against respondent resulted and money paid - Found applicant given instruction twice and any ambiguity about whether instruction applied to personal contact removed in second instruction - Found applicant's actions clearly and deliberately breached lawful and reasonable instruction - Found employment agreement provided for immediate dismissal for serious misconduct - Applicant claimed actions not serious misconduct because believed instructions only applied to professional contact - Found fair and reasonable employer would have reached conclusions applicant's actions serious misconduct - Found applicant not given opportunity to comment on suspension but suspension for short period and did not affect ability of respondent to justify decision to dismiss - Found disciplinary meeting should have stopped immediately after agreed meeting should be postponed so applicant could get representative - Found no unfairness resulted and dismissal decision based on later discussion - Dismissal justified |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s174 |
| Cases Cited | Kereopa v Go Bus Transport Limited unreported, Travis J, 18 Sept 2009, AC 25A/09;PBO v Da Cruz [2005] ERNZ 808;Smith v Christchurch Press Co [2000] ERNZ 624 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Auckland_281.pdf [pdf 37 KB] |