| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 169 |
| Hearing date | 11 May 2011 |
| Determination date | 03 November 2011 |
| Member | G J Wood |
| Representation | P O' Sullivan ; S-J Davies, T Cleary |
| Location | Wellington |
| Parties | Gini v Literacy Training Ltd and Anor |
| Other Parties | Sturgess |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant taught course to prison inmates – Applicant removed partially filled in Kiwisaver forms that had been used as part of course for safety reasons – Removal of Kiwisaver forms caused concern to unit manager (“U”) because considered applicant may have taken personal material about prisoners out of prison – U also concerned applicant used prison photocopier for large amount of material and prison markers and pens – U also concerned applicant did not mention had noticed prisoners looking at roof which would have provided intelligence about possible future prison escapes – Applicant accepted allegations and also advised about loss of teaching journal but did not fill in incident form as required – Applicant claimed nothing malicious about Kiwisaver forms and did not send incident report because did not know whether journal was stolen – Applicant denied compromising safety – Applicant accepted in retrospect would certainly do things differently – Applicant dismissed – Authority found respondent investigated applicant’s conduct for sound reasons – Found fair process adopted except for fact respondent did not appreciate provision of Kiwisaver material entirely appropriate to be used for course – Found no fair and reasonable employer would conclude applicant’s failing reached high standard required – Found no fair and reasonable employer would have dismissed applicant for any of defaults claimed – Found respondent should have accepted applicant’s explanation that removed forms from prison for safety reasons – Found appropriate for applicant not to fill in incident form as told by senior manager that senior manager would tell respondent of concerns – Found greater evidence required that applicant was actively pursuing agenda in breach of employment obligations – Dismissal unjustified – REMEDIES – No contributory conduct – $10,140 reimbursement of lost wages appropriate – $5,000 compensation appropriate – No award for clear breach of good faith as encompassed in finding of unjustified dismissal – PENALTY – Applicant claimed respondent managing director (“S”) aided and abetted breaches of contract – Found penalty claim raised out of time – Literacy Tutor |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($10,140) ; Compensation for humiliation etc ($5,000) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Arthur D Riley & Co v Wood [2008] ERNZ 462;Managh t/a Managh & Associates and Caf� Down Under Ltd v Wallington [1998] 2 ERNZ 337;Wyatt v Simpson Grierson [2007] ERNZ 489 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Wellington_169.pdf [pdf 53 KB] |