Employee Awarded $0.00 for Personal Grievance

Member Tetitaha of the Employment Relations Authority has declined to award any remedies to an employee who was found to be unjustifiably disadvantaged and unjustifiably dismissed because his behaviour was causative and blameworthy.

Mr Lenaghan was employed by Hydrovac Ltd as a heavy machine operator and was suspended and later dismissed after being allegedly caught drinking on the job and offering the vodka to his co-workers. The incident occurred during a call out to a safety-sensitive jobsite in West Auckland when Mr Lenaghan was due to start operating heavy machinery.

Hydrovac determined Mr Lenaghan be suspended on pay prior to an investigation. Unfortunately, they did not consult with Mr Lenaghan about this suspension first.

At the first disciplinary meeting written statements from witnesses were read out but not given to Mr Lenaghan. Following the third meeting Mr Lenaghan was dismissed for serious misconduct and he raised a personal grievance two days later.

The employer’s first mistake was in not allowing Mr Lenaghan the opportunity to comment on the suspension. Member Tetitaha said this defect was not minor and did create unfairness. Unjustified disadvantage was found.

The second mistake was in not providing Mr Lenaghan with copies of the witness statements before the disciplinary meeting. Rather, these were just read out to Mr Lenaghan. They were provided to him after the meeting. This meant the employee was not provided with all of the material the employer had before him prior to the meeting. The Authority said the additional material may have had little bearing upon the final decision at the time but fairness required that he be given it. Unjustified dismissal was found.

Hydrovac’s decision to dismiss was based upon an assessment of Mr Lenaghan’s truthfulness. There was a reasonable basis to conclude he was untruthful; Mr Lenaghan was evasive and contradictory throughout the disciplinary process and at the Authority hearing.

Mr Lenaghan’s untruthfulness was best shown when questioned about his previous convictions for dishonesty offending. He admitted theft of furniture in 1996 and confirmed under oath there was no other dishonesty offending. Under cross-examination it was put to him that he had also been convicted of impersonating a pilot in 2003. He admitted this and then also admitted he had convictions for benefit fraud in 2006-7.

This evidence demonstrated for Member Tetitaha Mr Lenaghan’s inability to refrain from lying and led her to conclude it was more probable he was untruthful in his denials about the alleged conduct he was dismissed for.

Member Tetitaha also contrasted Mr Lenaghan’s extensive experience with personal grievances; he acknowledged he had been involved in at least two employment relationship disputes, with Hydrovac’s inexperience in this area and lack of resources as a small to medium sized employer.

In considering remedies for the unjustified disadvantage and unjustified dismissal Member Tetitaha also considered Mr Lenaghan’s contributing behaviour.

There was no evidence of Mr Lenaghan’s efforts to find work and therefore no award was made for lost remuneration.

There was little or no evidence of hurt and humiliation and an award of $500 was deemed sufficient.

However, this sum was subject to contributing behaviour which is causative of the outcome and blameworthy. Member Tetitaha found Mr Lenaghan’s conduct of drinking while at work gave ‘good reason’ for suspension and a justified dismissal.

The Authority found this was rare case where a 100% reduction was appropriate. Mr Lenaghan was awarded nothing.

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