Employment law database

Restrictions: OK
Jurisdiction: Employment Relations Authority - Auckland
Reference No.: [2012] NZERA Auckland 175
Hearing Date: 2 Apr 2012
Judgment Date: 23 May 2012
Statutory Officer: J Crichton
Representation: R Mitchell (in person) ; L Inger
Location: Gisborne
Parties: Mitchell v Eastland Group Ltd
Summary: UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant defaced company documents – Found applicant bullied co-workers – Found applicant’s failure to report workplace injury within 24 hours not sufficient by itself to amount to serious misconduct – Dismissal justified – COUNTERCLAIM – PRACTICE AND PROCEDURE – Respondent sought order that applicant had breached confidentiality of mediation process – Respondent sought order for return of company property held by applicant – Found applicant not professional advocate – Applicant ordered to destroy respondent’s material on applicant’s computer and confirm no copies made – Marine operations manager
Abstract: Applicant employed by respondent as marine operations manager. Applicant claimed unjustifiably dismissed. Applicant’s subordinate (“J”) accused applicant of bullying and of holding back J’s training. Respondent agreed that two of applicant’s subordinates no longer had to report to applicant because of bullying by applicant. Nature of J’s role meant respondent required J to report to applicant. Respondent provided J with counselling to help J deal with difficult environment. Applicant injured while working and failed to report incident to respondent within 24 hours as required by respondent’s policy. Respondent commissioned inquiry. J assisted in collection of information. Report issued six weeks later concluded applicant failed to comply with health and safety policy. J scheduled to pilot vessel from port and prepared passage plan in advance. Co-worker saw applicant writing on J’s passage plan and informed J. Comments referred to applicant’s belief J had set applicant up regarding report into previous injury incident. Investigation commenced and applicant suspended. Respondent claimed applicant defaced company documents, bullied J and failed to follow procedure with respect to work related accidents. Applicant dismissed. Applicant claimed annotation to J’s passage plan joke. Applicant claimed unreasonable for respondent to accuse applicant of failing to report injury in timely manner given length of time for respondent to issue report into matter. Respondent sought order for applicant’s breach of mediation confidentiality. Respondent sought order for return of company property held by applicant.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: If applicant’s annotation of J’s passage plan isolated incident annotation may have been explicable as joke but should be viewed in context. Applicant bullied colleagues including J. Applicant’s failure to report injury in timely manner unlikely to justify dismissal by itself, but applicant’s annotation of J’s passage plan and applicant’s bullying both sufficient by themselves to justify dismissal. Dismissal justified.;COUNTERCLAIM – PRACTICE AND PROCEDURE: Applicant breached confidentiality of mediation process by revealing confidential information to Authority. Although applicant should have known not to breach confidentiality, applicant not professional advocate. Order declined. Applicant ordered to confirm respondent’s material on applicant’s computer had been destroyed and no copies remain.
Result: Applications dismissed (unjustified dismissal)(counterclaim)(practice and procedure – order for breach of mediation confidentiality); Application granted (counterclaim)(practice and procedure – order for destruction of respondent’s material on applicant’s computer); Order made; Costs reserved
Main Category: Personal Grievance
Statutes: ERA s113;ERA s148
Number of Pages: 14
PDF File Link: 2012_NZERA_Auckland_175.pdf [pdf 157 KB]