| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 356 |
| Hearing date | 5 Jul 2011 |
| Determination date | 11 August 2011 |
| Member | E Robinson |
| Representation | D Christensen ; J Rooney, G Martin |
| Location | Auckland |
| Parties | Cornes v Newmont Waihi Gold Ltd |
| Summary | INJUNCTION – Application for interim reinstatement – Applicant claimed unjustifiably dismissed and disadvantaged by respondent and sought interim reinstatement or reinstatement to payroll pending determination of substantive matter – Applicant claimed after reported fellow employee intoxicated at work bullied and harassed by other employees – Applicant claimed respondent failed to undertake necessary actions to rectify situation which caused disadvantage – Applicant approached employee (“G”) at work and physical altercation ensued – Respondent concluded following investigation into incident that applicant aggressor – Applicant summarily dismissed – Applicant commenced new employment at lower salary level and less favourable terms – Applicant claimed facts misrepresented by respondent – Applicant claimed not aggressor – Applicant claimed respondent’s process seriously flawed – Authority found respondent’s Code of Conduct listed fighting as gross misconduct and dismissible offence – Found respondent had substantive grounds for applicant’s dismissal – Applicant claimed suspended without consultation and due process – Found applicant suspended in accordance with Code of Conduct provisions – Applicant claimed union delegate also represented G and applicant should have been accorded free choice of representation – Found open to applicant to have requested other representation – Found in untested affidavit evidence applicant’s claim incorrect – Found respondent’s procedure fair – Found applicant had arguable case for reinstatement if claims established – Found unable to conclude applicant had strongly arguable case – Respondent claimed lost all trust and confidence in applicant and full trust and confidence essential in safety sensitive environment – Respondent claimed reinstatement would have negative effect on workplace – Found trust and confidence on part of parties not established to support reinstatement claim – Found reimbursement of lost wages and compensation would adequately recompense applicant should claims be successful – Applicant sought reinstatement to payroll – Applicant claimed under financial stress and reputation damaged – Respondent claimed applicant did not face continued humiliation as gained employment – Found significant applicant did not file urgent claim for interim reinstatement until five weeks after dismissed – Found applicant denied early substantive hearing – Found applicant only sought reinstatement to payroll in light of new employment – Found balance of convenience favoured respondent – Found overall justice favoured declining application for interim reinstatement – Application for interim reinstatement declined – Mill Operative |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s127;ERA s127(4);ERA s103A(3);Employment Relations Amendment Act 2010 s101(c);Employment Relations Amendment Act 2010 s125;Employment Relations Amendment Act 2010 s125(2) |
| Cases Cited | Cliff v Air New Zealand Ltd [2005] ERNZ 1;Graham v Airways Corporation of New Zealand Ltd [2005] ERNZ 587;Pacific Blue Employment & Crewing Ltd v B [2010] NZEMPC 112 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Auckland_356.pdf [pdf 30 KB] |