| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 189 |
| Hearing date | 24 Nov 2011 - 25 Nov 2011 (2 days) |
| Determination date | 01 December 2011 |
| Member | D Appleton |
| Representation | J Birney ; N McPhail |
| Location | Greymouth |
| Parties | Bell v Electronet Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant and fellow employee (“H”) claimed unjustifiably dismissed by respondent – Respondent claimed applicant intended to steal bobcat with fellow workers by loading bobcat onto ute – Respondent interviewed all four workers – Workers suspended pending disciplinary investigation – Respondent telephoned applicant’s father (“S”) who was also supervisor – Respondent wished to check whether S had told applicant would find out who owned bobcat – S denied this but said applicant mentioned it would be cool to do bobcat up to which S replied applicant should not be so stupid as not applicant’s property – Respondent claimed applicant heavily involved in attempt to remove bobcat from site and applicant did not previously stop theft of trolley wheels by fellow worker (“A”) – Applicant and H dismissed – Authority found relevant test contained in amended s103A Employment Relations Act 2000 – Found circumstances in which employer could justify dismissal widened – Found appropriate for respondent to speak to parties involved to establish whether there was case to answer first – Found initial meeting not disciplinary in nature so no prior notification, warning of possible disciplinary consequences or representation required – Found statements made in initial meeting played part in final decision but were not pivotal – Found applicant did not suffer any disadvantage – Found applicant did not know nature of suspension meeting and not given free choice of representation – Found suspension meeting not disciplinary meeting and applicant given opportunity to accept or decline suspension as appropriate – Found flaws did not make dismissal unjustifiable – Found reasonable for respondent to prefer fellow workers’ accounts of events to applicant’s – Applicant claimed unreasonable for respondent to place any weight on A’s evidence because applicant saw A steal set of cart or trolley wheels from site – Found such allegation should have alerted respondent to possibility that A’s evidence might be questionable – Respondent claimed relied more heavily on fellow employee’s (“D”) evidence and considered but rejected possibility D and A colluded in evidence – Found A’s evidence not determinative in respondent’s decision – Found A’s evidence did not render overall finding unjustifiable – Applicant claimed treated differently from A and D – Found difference in treatment justified – Found A not employee and respondent understood A’s employer took disciplinary action against A – Applicant claimed respondent should have taken into account that impossible to steal bobcat as too heavy for ute – Respondent claimed applicant obviously did not realise bobcat too heavy for ute as attempted to put on ute – Found explanation did not invalidate respondent’s decision – Applicant claimed would not have shown pictures of bobcat to S if had intention to steal bobcat – Respondent claimed did not preclude that applicant had not been thinking about actions properly – Found applicant’s argument that could have returned at any time to steal bobcat did not prove applicant did not have intention to steal bobcat at relevant time – Found applicant not given opportunity to comment on decision to dismiss – Found applicant asked what appropriate penalty would be – Found no unfairness to applicant – Found respondent’s decision that applicant committed serious misconduct reasonable in all circumstances – Dismissal justified – Linesman |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(5) |
| Cases Cited | Angus v Ports of Auckland Limited [2011] NZEMPC 125;Hurley v Electronet Services Ltd [2011] NZERA Christchurch 188;McKean v Ports of Auckland Limited [2011] NZEMPC 128;The Chief Executive of Unitec Institute of Technology v Henderson unreported, Colgan CJ, 19 Mar 2007, AC 12/07 |
| Number of Pages | 14 |
| PDF File Link: | 2011_NZERA_Christchurch_189.pdf [pdf 60 KB] |