Employment law

General Standards of Conduct Policy

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Safe Air Ltd v Walker

Jurisdiction: Employment Court - Christchurch
Reference No.: CC 8/09
Hearing Date: 30 Jul 2009 - 31 Jul 2009 (2 days)
Judgment Date: 07 August 2009
Statutory Officer/Judge: Couch J
Representation: TP Cleary ; M Hardy-Jones
Location: Christchurch
Parties: Safe Air Ltd v Walker
Summary: DRAFT HEADNOTE ONLY - DE NOVO CHALLENGE TO DETERMINATION OF EMPLOYMENT RELATIONS AUTHORITY - UNJUSTIFIED DISMISSAL - Serious misconduct - Defendant dismissed for inappropriate use of company email - Defendant’s personal grievance claim in Authority successful and reinstatement ordered (CA 86/09) - Authority rejected plaintiff’s application for stay of order of reinstatement pending challenge (CA 86A/09) - In earlier judgment Employment Court (“EC”) dismissed plaintiff’s challenge to Authority determination refusing to grant stay (CC 7/09) - EC found defendant did not know substance of plaintiff’s email policies until became aware was under investigation - Found defendant aware plaintiff had policies relating to email use and that was bound by them - Found on defendant’s own evidence, clear knew at time was wrong to send emails sent - Found email policies readily accessible to and readily understood by defendant when defendant did look at them - Found defendant ought to have known what policies were and ignorance of them inexcusable - EC rejected defendant’s argument that because other staff were sending frivolous or offensive emails, defendant thought was acceptable for him to do so - Found defendant’s own evidence that knew at time was wrong to send offensive emails contradicted that assertion - Found previous communications to staff reinforced email policy and made it unmistakeable that breaches would be regarded as misconduct - EC found defendant could not reasonably have believed behaviour was acceptable to management - Found defendant’s conduct capable of being regarded as serious misconduct - Found conduct led plaintiff to conclude that firstly, defendant prepared to engage in sustained course of conduct in course of employment which he knew to be wrong; and secondly, defendant prepared to engage in questionable conduct which knew was subject of company policy without finding out what policy was - Found was conduct capable of destroying or deeply impairing mutual trust and confidence essential to employment relationship - EC found plaintiff justified in regarding significant number of emails defendant sent as seriously offensive - Defendant submitted mitigating factor that inexperienced and held junior position - EC found defendant not naïve or immature and had been with plaintiff long enough to know and understand nature of responsibilities as employee - EC found plaintiff did consider mitigating factors of defendant’s previous good performance and that stopped sending inappropriate emails when became aware was against plaintiff’s wishes when making decision to dismiss - Defendant’s argument based on disparity of treatment rejected as EC found adequate explanation for disparity of treatment - Defendant also claimed was another form of disparity in that email traffic of some employees assessed over 1 or 2-month period whereas defendant’s analysed over 6-month period - EC accepted plaintiff’s explanation that emails of other employees had been inspected over 6-month period but they had only sent inappropriate emails during 1 or 2-month period - EC found dismissal was what fair and reasonable employer would have done - Dismissal justified - Challenge granted - EC noted reached different decision to Authority to large extent because evidence given by some witnesses, including applicant, was different or more extensive than that provided to Authority
Result: Challenge granted ; Authority determination set aside ; Costs reserved
Statutes: ERA s103A
Cases Cited: Chief Executive of the Department of Inland Revenue v Buchanan (No 2) [2005] ERNZ 767 ; Safe Air Ltd v Walker unreported, Couch J, 10 Jul 2009, CC 7/09 ; Samu v Air New Zealand Ltd [1995] 1 ERNZ 636 ; Walker v Safe Air Ltd unreported, H Doyle, 22 Jun 2009, CA 86/09 ; Walker v Safe Air Ltd unreported, H Doyle, 2 Jul 2009, CA 86A/09

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