Posted on: Jun 04, 2013

When a disciplinary investigation takes a long time to complete, the employer should take into consideration the length of time that has passed when deciding on an appropriate outcome.

In Hyland v Air New Zealand [2013] NZERA Auckland 108, a flight attendant who, after being woken roughly from sleep shook the person who woke her and asked her to understand what it felt like to be woken up in that way, was issued with a final warning and was required to attend three anger management training sessions. The warning was not given to the attendant until 10 months after the actual incident. In the intervening 10-month period the flight attendant had worked without incident. The attendant raised a personal grievance for disadvantage in her employment.

The Employment Relations Authority referred to section 103A of the Employment Relations Act 2000 and noted that the critical point of time for assessing the reasonableness of the warning was the time at which the warning was given. The Authority said that, objectively, a fair and reasonable employer could not have considered that after 10 months any purpose could be achieved by giving a final warning for conduct that had become historical and which had not been repeated. The Authority said that, to be effective, anger management training should have been required much earlier on. The Authority held that the attendant had a personal grievance and ordered that the warning be removed from her file and that the instruction to attend anger management training be withdrawn. It ordered the attendant to sign her letter of apology to the other employee.


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