| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 366 |
| Hearing date | 4 May 2011 |
| Determination date | 19 August 2011 |
| Member | K J Anderson |
| Representation | M Wilson ; S Hood |
| Location | Hamilton |
| Parties | Jones v Waikato Institute of Technology |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably disadvantaged by loss of option to transfer employment before unjustifiably dismissed by respondent – Respondent commenced review of electrical services and proposed would outsource to independent contractors – Manager (“E”) held meeting to discuss proposal with applicant, human resources advisor (“A”) and union representative – Applicant made written submissions in response to proposal – A claimed met with E and support services director (“B”) to reconsider proposal in light of applicant’s submissions but decided proposal would go ahead – Applicant told of position disestablishment at meeting and given option of redundancy or transferring to successful contractor – Applicant claimed thought would elect to transfer to new employer – Option of transferring to new employer never available and, although aware option unavailable at first meeting, A failed to tell applicant – A claimed day after first meeting told by E applicant making threats – Co-worker (“C”) claimed had conversation with applicant and applicant asked if C could imagine damage applicant could cause while worked out notice – A prepared written statement recording conversation which C signed – Co-worker (“D”) claimed overheard applicant’s conversation with C, could not confirm if applicant used word “damage” or “mischief” but did not think applicant would sabotage respondent – A discussed matter with E and B and noted C respected employee who did not gossip – E claimed applicant capable of endangering people and buildings based on earlier altercation where applicant threatened E – E claimed discussed matter with B, agreed risk of sabotage too great and A would try to get applicant to leave immediately - Applicant claimed told by E required to attend urgent meeting same day but not told why needed to attend – A claimed did not tell applicant purpose of meeting as risk applicant would damage respondent’s property - Applicant denied at meeting had told respondent would accept redundancy – Applicant told A would not sabotage respondent after all applicant’s hard work and alleged threat only joke about long notice period – Applicant claimed A refused to give applicant copy of C’s statement or say who statement was from - A claimed applicant agreed would leave immediately – Applicant claimed did not consent to being paid in lieu of working out notice period and only agreed to this because misled by respondent – Alternatively, applicant claimed forced by respondent to leave employment – Authority found claim unjustifiably disadvantaged by loss of option to transfer employment should be considered overall in light of dismissal - Found, as applicant did not consent, respondent not entitled to pay applicant in lieu of notice – Found respondent ambushed by serious allegations at disciplinary meeting – Found no evidence applicant would sabotage respondent or refuse to attend meeting if told of meeting’s purpose – Found applicant entitled to be given notice of meeting and allegations and view C’s statement – Found applicant not given opportunity to choose representative – Found applicant used word “damage” not “mischief” – Found outcome of meeting predetermined and respondent could have suspended applicant while conducted full and fair investigation - Found respondent’s actions not those of fair and reasonable employer in all circumstances – Dismissal unjustified - REMEDIES – 50 percent contributory conduct - Found applicant not entitled to further reimbursement of wages as paid in lieu of notice but had grievance due to sudden, unexpected and unfair termination – Found $6,000 compensation appropriate - PENALTY – Applicant sought penalty for respondent’s failure to act in good faith – Found respondent did not deliberately mislead or deceive applicant – No penalty - Electrician Technician |
| Result | Applications granted (unjustified dismissal) (unjustified disadvantage) ; Contributory conduct (50%) ; Compensation for humiliation etc ($12,000 reduced to $6,000) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A)(c);ERA s103A;ERA s103(1)(a);ERA s103(1)(b);ERA s123;ERA s124;ERA Schedule 1A;Employment Relations Amendment Act 2010 |
| Cases Cited | Forever Living Ltd v Kruesi unreported, Colgan J, 27 September 1995, AEC 100/95;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Stams v NZ Rennet Company Ltd [1991] 2 ERNZ 487;Vice-Chancellor of Massey University v Wrigley [2011 NZEMPC 37 |
| Number of Pages | 19 |
| PDF File Link: | 2011_NZERA_Auckland_366.pdf [pdf 60 KB] |