| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 313 |
| Hearing date | 30 Jun 2011 |
| Determination date | 15 July 2011 |
| Member | R Arthur |
| Representation | A Little ; K Thompson |
| Location | Auckland |
| Parties | Wright v Air New Zealand Ltd |
| Summary | INJUNCTION – Application for interim reinstatement pending substantive hearing – Applicant claimed unjustifiably dismissed on basis of serious misconduct – Respondent claimed applicant intimidated, swore at co-worker (“S”) and threatened S “can settle this in other ways out of the office” – Respondent claimed lost trust and confidence and applicant lacked remorse - Applicant claimed dismissal procedurally unfair and respondent had not taken into account long service – Authority found some misconduct occurred when applicant confronted S – Manager (“M”) noted differences in applicant’s evidence and S and another co-worker’s evidence – Respondent did not accept applicant’s evidence of confrontation despite inconsistencies – Authority found arguable respondent’s finding of serious misconduct not fairly and reasonably reached – Found S’s evidence felt threatened and left office quickly inconsistent with video footage – Found when S told evidence inconsistent respondent did not request any explanation of inconsistencies – Found respondent did not consider whether “out of the office” meant outside formal workplace procedures rather than threat to physically harm S outside workplace – Found reinstatement no longer primary remedy but remained one measure available to settle grievance – Found arguable case applicant would be awarded reinstatement at substantive hearing – Respondent considered adequate supervision to leave S and applicant in same workplace on same roster during disciplinary investigation – S told M applicant’s behaviour “really good” since incident - Found no reason to assume management of applicant and S would be any less practical if applicant later reinstated – Found applicant’s long service with no previous disciplinary issues also supported likelihood of reinstatement - Found respondent assumed M’s conclusions about applicant’s conduct justified – Respondent claimed applicant’s delay in lodging proceedings should be taken into account – Found delay not lengthy and respondent not prejudiced by delay – Found permanent reinstatement not affected if interim reinstatement not granted and respondent able to meet costs of any award – Applicant claimed struggled to find alternative employment – Found applicant’s evidence lacked specific supporting evidence would suffer financial hardship before substantive investigation – Respondent claimed applicant’s failure to provide evidence could pay damages weighed against reinstatement – Found not necessary that applicant’s ability to pay damages conclusively established at interim reinstatement application stage and union had also given undertaking – Respondent claimed interim reinstatement not practical or reasonable because of applicant and S’s relationship and impact on other employees – Found inconvenience not any greater than respondent’s management of applicant and S during disciplinary investigation – Found applicant gave no evidence of hardship except missed co-workers – Balance of convenience favoured respondent – Found applicant’s evidence also had some inconsistencies and admitted some misconduct – Respondent’s policy stated threatening words and behaviour might constitute serious misconduct – Found however more likely than not applicant would successfully challenge reasonableness of respondent’s reliance on S’s evidence and whether respondent considered alternatives to dismissal – Found overall justice of case favoured applicant – Application for interim reinstatement granted – Cargo Warehouse Agent |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s3;ERA s125(2);ERA s127;ERA s127(4) |
| Cases Cited | Air New Zealand v Bisson unreported, Shaw J, 17 June 2005, CC 6A/05;Cliff v Air New Zealand [2005] ERNZ 1;Honda New Zealand Ltd v New Zealand Boilermakers Union ERNZ (1990) Sel Cas 855;Mitch Harris Contractor Ltd v Donner unreported, Palmer J, 14 March 1997, CEC 6/97;New Zealand Baking, Pastry Cooking & Related Industries Employees Union Inc v Stormonts Bakeries Co Ltd unreported, Colgan J, 5 May 1994, AEC 18/94;NZ Food & Textile Workers Union v Bay Milk Products Ltd [1991] 2 ERNZ 231;Wellington Free Ambulance Service Inc v Adams [2010] NZEMPC 59 |
| Number of Pages | 16 |
| PDF File Link: | 2011_NZERA_Auckland_313.pdf [pdf 48 KB] |