| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 125 |
| Hearing date | 21 Jun 2011 |
| Determination date | 28 July 2011 |
| Member | E Robinson |
| Representation | R Jamieson ; P Chemis, M Harrop |
| Location | Wellington |
| Parties | A v Chief Executive Child, Youth and Family |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant slapped son (“X”) across mouth outside squash club – Bystanders reported incident to Child Youth and Family Protection Team – Complaint investigated by experienced social worker (“L”) and matter referred to Police – Meetings held with applicant and family – L claimed as result of meeting ascertained all three children hit regularly by both parents – Applicant received letter outlining allegations – Applicant suspended on full pay pending outcome of disciplinary process – Applicant denied hitting X but Acting Supervisor (“O”) and Practice Leader claimed applicant admitted allegation in earlier meeting – Matter referred to Family Group Conference (“FGC”) – Applicant arrested and charged with assault on a child in relation to incident with X – Applicant invited to attend disciplinary meeting – X claimed incident one-off – General Manager of Service Support (“H”) discussed with applicant expectations of senior staff in both personal and professional lives – H satisfied interviews of children carried out by well trained and experienced interviewers and L and O’s explanations about children’s safety adequate – L and O told H believed hitting stopped but applicant continued to deny hitting children apart from incident outside squash club – L and O claimed this factor motivated requirement for FGC – No agreement reached in FGC and matter not referred to Family Court – Applicant discharged without conviction by Police – Applicant dismissed – Authority found applicant bound by Code of Conduct – Found applicant’s action towards X and behaviour towards siblings were in breach of requirements expected of applicant as employee – Found disciplinary process separate process from Police prosecution involving additional considerations and different standard of proof – Found reasonable for H to consider legislative changes regarding use of force with children relevant as applicant’s non-adherence to policy expectations known to both Police and members of public who knew of employment with respondent – Found H could not solely rely on respondent’s zero tolerance policy to physical abuse of children in order to justify dismissal – Found Code of Conduct applicable to out of work conduct – Found H’s conclusion applicant’s actions inconsistent with respondent’s values reasonable conclusion – Found H’s conclusion applicant’s behaviour constituted serious misconduct finding fair and reasonable employer would have reached – Found H’s conclusion applicant’s conduct brought respondent into disrepute valid – Found respondent no longer had requisite trust and confidence in applicant – Found decision to dismiss one which fair and reasonable employer would have made – Dismissal justified – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged during investigation process – Found applicant suspended on pay for more than six months – Found applicant consulted on proposal to suspend – Found suspension was option available to fair and reasonable employer – Found decision for H to reach own decision rather than relying on previous General Manager of Service Support’s preliminary decision extended period of suspension – Found extent that extension to process gave applicant opportunity to be heard by H before final decision reached not unjustifiable disadvantage – Team Leader |
| Result | Applications dismissed ; Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A;ERA Second Schedule cl10(1);Children, Young Person and their Families Act 1989;Official Information Act 1982 |
| Cases Cited | Fuiava v Air New Zealand Limited [2006] ERNZ 806;Graham v Airways Corporation of New Zealand Ltd [2005] ERNZ 587;Housham v Juken New Zealand Ltd [2007] ERNZ 183;Ministry of Justice v Dodd (2010) 7 NZELR 578;Sefo v Sealord Shellfish Ltd [2008] ERNZ 178;Smith v Christchurch Press Company Ltd [2000] ERNZ 624;Tawhiwhirangi v AG in respect of Chief Executive Department of Justice [1993] 2 ERNZ 546 |
| Number of Pages | 20 |
| PDF File Link: | 2011_NZERA_Wellington_125.pdf [pdf 65 KB] |