| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 177 |
| Hearing date | 8 Jun 2011 - 19 Jul 2011 (2 days) |
| Determination date | 17 November 2011 |
| Member | H Doyle |
| Representation | J Goldstein ; A Sheriff, S Heywood |
| Location | Christchurch |
| Parties | X v Secretary for Justice |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent when issued with final warning – Order prohibiting publication of any medical evidence in matter – Interim order prohibiting publication of applicant’s name or identifying details – Applicant received email from solicitor (“P”) with video attachment which was detected by audit – Applicant received and forwarded on another email from friend (“D”) with image attached which was also detected by audit – Applicant received two further emails from partner (“A”) and P with images attached which were detected by audit – Respondent received report from audit about emails – Respondent claimed applicant breached code of conduct and use of computer, email, intranet and internet policy – Applicant claimed aware of code of conduct and policies relating to computer use – Applicant claimed concerned about delay between alleged inappropriate emails sent and bringing of matter to applicant’s attention – Authority found reporting out of respondent’s control – Found applicant not set up due to fact further inappropriate emails sent before applicant made aware initial emails deemed inappropriate – Found report referred to inappropriate content and may have influenced respondent’s decision about whether content inappropriate – Applicant invited to preliminary meeting and given memory stick containing relevant information – Found no unfairness from matters raised in meeting but not specifically mentioned in final report – Found no unfairness in line manager only being interviewed after substantive disciplinary meeting – Further memory stick given to applicant containing spreadsheet of images sent from P to applicant – Found no predetermination in setting substantive meeting at beginning of process – Found no unfairness in delay in availability of all information because provided to applicant before required to give explanation – Applicant claimed when became aware of nature of attachments deleted email – Respondent concluded applicant aware email inappropriate because of title of attachment – Found applicant not asked about title of attachment – Applicant claimed unable to see title of attachment – Found applicant previously asked P not to send objectionable emails – Respondent concluded applicant did not delete emails and attachments immediately but retained them on respondent’s system and was therefore in breach of computer use policy – Respondent concluded applicant in possession of obscene material which was objectionable or likely to offend – Respondent concluded inappropriate for applicant to forward D’s email – Applicant received written warning – Found two breaches of managing employees’ policy where meetings not held – Found even if first meeting held would not have resulted in different outcome – Found applicant provided further submissions and due weight was given – Found failure to have final meeting was fundamental breach because should have discussed title of attachment – Found fair and reasonable employer would have questioned applicant about title of attachment – Found no basis to suggest attachment deleted separately from email – Found fair and reasonable employer would have concluded email with video attachment stayed in applicant’s mail box for 15 days after sent – Found if applicant knowingly retained objectionable images on system then fair and reasonable employer would have imposed warning – Found fair and reasonable employer would have found emails from D and A not suitable for workplace – Found applicant had good work record and line manager considered applicant of good character – Found D and A emails not as serious – Unjustified disadvantage – REMEDIES – 100 percent contributory conduct – Applicant to be reinstated to position before warning issued – Applicant claimed special damages for legal fees incurred during disciplinary process – Found no breach of contract and therefore special damages not appropriate – No penalty awarded – Registry Officer |
| Result | Application granted ; Contributory conduct (100%) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA Second Schedule cl10 |
| Cases Cited | Clarke v AFFCO NZ Ltd [2011] NZEMPC 17;Harwood v Next Homes Limited [2003] 2 ERNZ 433;Moxon v Pathways Health Ltd t/a Pathways [2011] NZERA Christchurch 151;Smith v Air2There.com (2008) Ltd [2011] NZERA Wellington 98;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 32 |
| PDF File Link: | 2011_NZERA_Christchurch_177.pdf [pdf 156 KB] |