| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 447 |
| Hearing date | 13 Oct 2011 |
| Determination date | 17 October 2011 |
| Member | R Arthur |
| Representation | L Campbell ; M Quigg |
| Location | Auckland |
| Parties | Jordan v Invitrogen New Zealand Ltd |
| Summary | INJUNCTION – Application for interim reinstatement – Applicant dismissed for serious misconduct – Applicant had formal meeting with Human Resources Director (“S”) to discuss whether applicant followed proper process in employing permanent employee – Formal meeting provided for in respondent’s disciplinary code – Applicant offered no excuses for not following procedure – Applicant claimed thought had permission to recruit permanent employee and formal requisition form would be approved – S claimed took applicant’s comments as acknowledging applicant had misled S – S told applicant had lost trust in applicant and adjourned meeting – Applicant dismissed –Authority found arguable that applicant’s conduct not serious misconduct – Found hiring procedure not clear – Found applicant believed on reasonable grounds S had approved or would approve change in employment status – Found applicant acted to change employment status because other human resource team member resigned and concerned other member would also – Found applicant discussed concern with S and acted in interests of respondent to ensure retention of staff – Found applicant openly discussed intentions for permanent employment status – Found change occurred shortly after respondent introduced headcount freeze but basis of change did not breach policy – Found nothing to suggest applicant’s actions for personal gain or inappropriate motive – Found no evidence of actual economic or other damage to respondent – Found delay in S taking action on conduct supported arguability of applicant’s case – Found likely S knew that formal process had not been undertaken – Found other procedural elements of applicant’s case about justifiability of dismissal that crossed threshold of arguability – Found if dismissal unjustified, arguable that applicant would be reinstated – Found S prepared to let applicant continue to work after discovering breach so not well placed to claim not practicable for applicant to continue to work – Found risk of financial hardship favoured applicant – Found continued access to medical insurance provided as part of salary package important to applicant due to previous health issues – Found applicant likely to have difficulty fully mitigating loss by getting alternative employment due to age and previous health concerns – Found prospect of success in personal grievance and be awarded permanent reinstatement and remedies not adequate alternative justifying Authority withholding relief of interim reinstatement – Respondent claimed would have significant difficulty reintegrating applicant to former role on interim basis – Respondent claimed applicant would require supervision over how applicant handled two other jobs – Found other jobs not taken into account because applicant not given opportunity to explain them – Found reinstatement might be inconvenient, but not impracticable or unreasonable – Found moral justice favoured applicant – Found balance of convenience favoured applicant – Found overall justice favoured applicant – Found applicant’s case had realistic prospect of success – Found respondent had discretion to have applicant serve interim reinstatement on garden leave basis – Interim reinstatement ordered – Human Resources Manager |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s127 |
| Cases Cited | Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767;Honda NZ v NZ Shipwrights Union (1990) ERNZ Sel Cas 855;Melville v Chatham Island Council [1999] 2 ERNZ 76;X v Y Limited [1992] ERNZ 863 |
| Number of Pages | 14 |
| PDF File Link: | 2011_NZERA_Auckland_447.pdf [pdf 66 KB] |