| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 343 |
| Hearing date | 24 Jun 2011 |
| Determination date | 29 July 2011 |
| Member | R Larmer |
| Representation | D Dumolo (in person) ; G Peploe |
| Location | Tauranga |
| Parties | Dumolo v Lakes District Health Board |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant ran martial arts school and offered to run knife defence seminar for security staff at hospital for agreed cost – Applicant took blank DVD from workplace – Applicant’s actions observed by colleague (“D”) – D emailed account on incident to Systems Operations Manager – Applicant shown D’s email and asked if wanted to respond – Applicant admitted took DVD to show students at martial arts training seminars – Applicant claimed DVD related to work because applicant provided martial arts training to hospital security staff – Applicant admitted respondent had not asked applicant to make DVD – Rules of Conduct set out examples of serious misconduct including unauthorised possession of respondent property – Applicant scheduled to attend disciplinary meeting for another incident but meeting cancelled and new disciplinary letter issued which included failure to back up tape and DVD issues – No sanction imposed regarding back up tape failure – Applicant claimed taking DVD equivalent to taking home paper with notes on it – Chief Information Officer (“W”) did not accept taking DVD minor or trivial matter because was low value item – W believed inappropriate that applicant believed could take respondent’s property because low value item – W did not accept explanation applicant took DVD because intended to use it to help train hospital staff – Authority found sufficient evidence to fairly and reasonably conclude applicant did not take DVD for respondent’s benefit and took DVD for use as training tool for applicant’s school – Found open to respondent to conclude applicant acted dishonestly – Found fair and reasonable employer would have concluded applicant’s action in taking DVD amounted to serious misconduct – W claimed no mitigating circumstances – W claimed applicant’s attitude unrepentant and dismissive – Found applicant’s responses justified W’s view – Found applicant’s actions in taking DVD and responses to respondent broke trust – Found applicant received one recent warning and subject of ongoing performance concerns – Found respondent adopted fair process – Found notwithstanding low value of item, fair and reasonable employer would have concluded summary dismissal appropriate – Dismissal justified – Information Systems Support Level 2 Technician |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;Employment Relations Amendment Act (No 2) 2004;Employment Relations Amendment Act 2010 s15;Interpretation Act 1999 s4;Interpretation Act 1999 s7;Interpretation Act 1999 s17(1);Interpretation Act 1999 s18(1) |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Auckland_343.pdf [pdf 33 KB] |