| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 488 |
| Hearing date | 9 Aug 2011 |
| Determination date | 11 November 2011 |
| Member | R Arthur |
| Representation | P Blair ; S Hornsby-Geluk |
| Location | Auckland |
| Parties | Toleafoa v Vodafone New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant sent three emails encouraging workers to join union to group distribution lists – Respondent manager (“F”) cautioned applicant that emails in breach of company policy and told applicant not to send anymore – Applicant sent further email about union membership to group distribution lists – Respondent manager went to applicant’s workstation and observed applicant ignore business call while taking personal call – Applicant claimed could not recall missing business call but accepted breached company policy if did – Applicant claimed had not intentionally failed to follow instruction as needed to clarify some aspects referred to in emails about union – Respondent checked other emails applicant sent from work address – Respondent claimed discovered applicant had sent emails which were derogatory about respondent managers, revealed internal business information and showed applicant had not taken sick leave for genuine reasons – Applicant claimed additional emails were private conversations – Respondent dismissed applicant due to breakdown of trust and confidence – Authority found applicant’s argument about group distribution list email being a reply unconvincing – Found applicant’s actions intentional flouting of specific instruction given by F – Found instruction not in breach of collective agreement as applicant not delegate of union and instruction did not forbid union activity as flyers and work notice board able to be used to promote union – Found respondent could legitimately instruct applicant to cease sending emails to group distribution lists without impinging on rights of employees to communicate on union matters – Found not answering business call could constitute serious misconduct – Found respondent not justified in finding serious misconduct about applicant’s inclusion of extract from human resource advisor’s email about salary reviews as contents hardly surprising and not commercial secret of advantage to anyone else – Found respondent justified in finding language applicant used in some emails was misconduct – Found applicant’s defence that emails were private failed as inconsistent with terms of respondent’s email policy – Found respondent did not have sufficient basis to hold applicant had no genuine reasons for sick leave – Dismissal justified – Customer Service Representative |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s174 |
| Cases Cited | New Zealand (with exceptions) Food Processing IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Auckland_488.pdf [pdf 56 KB] |