| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 320 |
| Hearing date | 9 Jun 2011 |
| Determination date | 20 July 2011 |
| Member | V Campbell |
| Representation | A VAne ; G Lough |
| Location | Taupo |
| Parties | Day v Multi Media Services Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent as result of warning and suspension – Applicant suffered from RSI injury and told by doctor should not work more than three hours per day – Applicant left work for day as found difficult to work and said required to take day off – Form from doctor did not state to take day off work – General Manager (“L”) asked applicant to either return to work or have form rectified by doctor to reflect requirement to take day off – Argument ensued between parties and applicant refused to return to work – Applicant invited to attend disciplinary meeting – Applicant issued with warning for failure to follow lawful and reasonable instruction and being insubordinate towards L and management generally – Authority found instruction to return to work to discuss applicant’s reduction to three hours work per day lawful – Authority not satisfied instruction reasonable in all circumstances – Found L did not explain why necessary to have discussion that afternoon – Found although form did not state applicant to take day off, no dispute applicant had ongoing problems with wrists – Found applicant subsequently provided medical certificate for absence – Found more likely than not L formed view applicant not honest about needing to rest wrists – Found L did not take into account fact applicant had no way of getting back to work that day – Found warning disadvantaged applicant as put applicant closer to dismissal than would otherwise be – Found warning unjustified – Found requirement that applicant return to work when wrists causing pain and in absence of transport was unreasonable instruction – Found decision to issue warning not action of fair and reasonable employer – Applicant claimed unjustifiably suspended following alleged serious misconduct – L denied suspended applicant – L claimed entirely applicant’s decision whether came to work or used full time to prepare for meeting – Found employment agreement (“EA”) provided for suspension pending investigation into serious misconduct – Found more likely than not L invited applicant to take time off work and did not suspend applicant – No disadvantage – REMEDIES – Found no lost wages as result of disadvantage – Found no evidence of hurt and humiliation – No remedies awarded – UNJUSTIFIED DISMISSAL – Serious Misconduct – Respondent claimed applicant failed to stop time recording system and allowed time to be recorded against client for time whilst undertaking non-client related work – L believed applicant’s online profile promoted applicant’s own brand name and used images belonging to respondent – Applicant invited to attend disciplinary meeting and dismissed for serious misconduct – Applicant claimed inadvertently left time recording system operating – L did not consider actions constituted serious misconduct but believed warning appropriate – No warning issued – Applicant denied marketed own brand – Found applicant had not obtained respondent’s permission to use images in portfolio – EA prohibited applicant competing with respondent’s business – L concluded applicant’s online profile promoted and sought work in personal capacity – L concluded applicant’s conduct constituted serious breach of EA – Applicant claimed decision to dismiss predetermined – Applicant claimed locks to office changed and email account closed – Found more likely than not locks changed after attempts made to gain unauthorised access into respondent’s computers – Found L considered hiring part time graphic designer to help while applicant on restricted hours – Found decision to dismiss one which fair and reasonable employer would have made – Dismissal justified – Graphic Designer |
| Result | Application granted (unjustified disadvantage)(warning) ; Applications dismissed (unjustified disadvantage)(suspension) (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2002, AC 65/02;Mason v Health Waikato [1998] ERNZ 84;McCosh v National Bank unreported, Colgan J, 13 Sept 2004, AC 49/04;NZ Storeworkers IUW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_320.pdf [pdf 31 KB] |