| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 427 |
| Hearing date | 24 Aug 2011 - 26 Aug 2011 (3 days) |
| Determination date | 03 October 2011 |
| Member | A Dumbleton |
| Representation | C Stewart ; R Harrison |
| Location | Auckland |
| Parties | Manoharan and Anor v The Chief Executive of Waiariki Institute of Technology |
| Other Parties | Robinson |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicants sought reinstatement - First applicant (M") summarily dismissed - Second applicant ("R") resigned with immediate effect but claimed was constructively dismissed - Application for interim reinstatement unsuccessful - Respondent claimed applicants failed to follow proper procedure when claimed expenses, made false expense claims and dishonest when respondent made inquiries - Applicants' code of conduct examples gave wilfully submitting false claim for expenses as example of serious misconduct and failure to comply with respondent's procedures as example of less serious misconduct - Respondent warned M conduct potentially represented serious misconduct - Disciplinary meeting held next month and respondent accepted conduct was mistake - Respondent met with R as witness for further information - Respondent wrote to M and R next day advising had since discovered more expense claims that appeared false - Respondent told applicants concerned had not followed correct procedure and applicant dishonest day before - Respondent held disciplinary meetings - Respondent advised M at end of meeting had considered explanation and terminated employment effective immediately - Respondent gave M letter confirming termination due to loss of trust and confidence in M - Respondent advised R at end of meeting had deceived respondent and had lost trust and confidence - Respondent told R had prepared letter terminating employment but had decided due to personal situation would offer R opportunity to resign and receive payment in lieu of notice - Respondent refused R's request to speak to others first - R resigned confirming two months' notice and annual leave entitlements - Authority regarded resignation as dismissal - Found justification for dismissal to be determined under amended s103A Employment Relations Act 2000 - Found once respondent decided applicants were guilty of serious misconduct no further opportunity for applicants to consider finding before applicants dismissed - Found applicants not given opportunity to respond to allegation applicants had collaborated about evidence - Found when respondent carried out applicants' disciplinary inquiry did not act fairly or reasonably - Found M's dismissal unjustified and R's employment terminated by unjustified dismissal not freely given resignation - Found matter unusual and further evidence raised questions about wilfulness of applicants' actions and knowledge of respondent's proper procedure - Found evidence should be considered further - Parties directed to undertake further mediation - REMEDIES - Some contributory conduct even if applicants made honest mistake - Leave reserved to determine contribution and remedies - GOOD FAITH - PENALTY - M claimed respondent breached good faith obligations and sought penalty for respondent's delay and obstruction - When respondent became aware of application instructed staff not to provide support to M - Authority issued respondent ultimatum to retract instruction to staff - Respondent emailed staff two weeks later advising withdrew instruction not to support M - Found respondent's breach of employment agreement sustained, serious and deliberate - Found if respondent's conduct had occurred while employment in place respondent would have been liable for penalty but employment ended when email sent - Found however respondent delayed or obstructed investigation meeting as investigation had started when email sent - Found respondent's blatant attempt to disable any opposition was not act of good faith - Found retraction did little to reassure staff intimidated by email - Found M and R should be compensated for respondent's breach of employment agreement - Penalty appropriate - Parties directed to undertake further mediation to resolve breach of good faith claim - Leave reserved to determine damages and penalties - Senior Managers" |
| Result | Applications granted; Leave reserved to determine quantum of remedies ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s4A;ERA s103A;ERA s103A(5);ERA s123;ERA s134A;ERA s181 |
| Cases Cited | Ho v The Chief of Defence Force [2005] ERNZ 93;Sigglekow v Waikato District Health Board [2011] NZERA Auckland 384;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 15 |
| PDF File Link: | 2011_NZERA_Auckland_427.pdf [pdf 72 KB] |