File photo / NZ Herald
A South Island court registry officer who viewed porn, sent to him on his work computer, has been reinstated to his job.
The Employment Relations Authority has prohibited publication of the man's name for 28 days to allow him time to challenge identification.
The ERA said that, although publication would be embarrassing, it was not persuaded that the interests of justice required permanent suppression.
Before the case came to the authority it was handled confidentially, with only the people involved in the disciplinary investigation and decision making knowing about it.
In its written finding, the ERA upheld a personal grievance the employee had over his first written warning.
He successfully claimed he was unjustifiably disadvantaged and that the Ministry of Justice had breached both the terms and conditions of his employment and its good faith obligations toward him.
His file will reflect that he has been reinstated as if the warning had not been issued.
However, a bid for $15,000 in compensation or, alternatively, damages for breach of contract has been turned down because of his own contribution to the situation.
The objectionable material was found on the man's work computer during an audit. It had arrived, unsolicited, at different times by email from three people - his partner, a good friend, and a solicitor.
One email had a video attachment (retained in his inbox for 15 days) and the others had images attached The employee forwarded six of the images on to other people.
Whether or not he viewed the video sent by the solicitor - who had previously sent him objectionable emails - his employers concluded he knew its content was "at the very least, inappropriate." The email heading was "Waterworld" and the attachment was entitled "all girl squirt gangbang."
It was accepted that the recipient had not requested any of the emails be sent to him.
However, retaining and forwarding the emails was in breach of the Ministry's computer, email, intranet and internet policy. And possessing the material in the workplace was deemed inappropriate, obscene, objectionable or likely to offend.
The employee's actions in keeping the material instead of deleting it quickly were considered serious misconduct by his regional manager.
In its finding, the authority said there were two breaches of policy by the employer where meetings were not held. One was when the investigator presented the findings and explained what decision had been reached. The other was failure to discuss the outcome with the employee.
There was one very clear procedural difficulty for the Ministry, the ERA said.
The employee never got an opportunity to answer any questions about the title of one email and its attachment. It was assumed by investigators that he must have known the nature of it was inappropriate.
Failure to have a final meeting required by policy before a decision was made was "a fundamental one and not simply a technical procedural breach," said the authority.
In a fair process, the outcome must not be pre-determined until the evidence and explanations had been considered.
Doubt was raised over whether the employee had actually accessed the attachments to some emails and when he had deleted them.
All that could be determined was when the email (not the attachment) was open in the man's inbox. The Ministry's IT system could not establish when the attachment was opened and/or deleted.
It might well have been that the employee deleted the attachment and left the email open, but the ERA finding was that there was "blameworthy conduct" on his part because he did not delete it for two weeks.
For that reason, no compensation was awarded.
In ordering reinstatement to his position, the authority said a fair and reasonable employer would not have given the man a first written warning without first allowing him the opportunity to explain.
In the case of less offensive emails - even if inappropriate for the workplace - an educational caution, firm discussion or a first step verbal warning could be more appropriate for lower level misconduct.
The authority reserved the issue of costs.
Rubbish result
Meanwhile, sacking a long-term employee for throwing two bags of personal rubbish into a company skip has been a costly exercise for a meat company.
The Employment Relations Authority has found Ovation Ltd, which slaughters and processes lamb for the export market, unjustifiably dismissed Chris Puhia and awarded him about $20,000. However, the compensation was significantly reduced as the authority also found Mr Puhia had been ``the author of his own misfortune''.
Mr Puhia had worked for Ovation Ltd's Gisborne operation for eight years when, on November 16, 2008, he visited the plant on a day off to get his glasses.
He parked outside the smoko room to look for them before driving about 50 metres to a skip bin, into which he threw two grocery bags full of rubbish from his car, including empty drink cans and food wrappers.
One of his colleagues saw him and reported it to plant manager Sean Naden, who summonsed Mr Puhia to a meeting the next day at which he was told he was suspended.
A further meeting was held on November 18, at which Mr Puhia gave the names of other people who had used the bin.
"Mr Naden said ... he had considered the current situation which was that an employee had been seen on a non-work day driving into the plant and depositing two bags containing personal rubbish into a non-food skip and had offered no explanation for doing so,'' the authority said in its finding.
"Mr Naden said that he had taken into account that there were no signs in place and that Mr Puhia had not been stopped from placing the bags of rubbish into the skip.
"However, he had also taken into account the fact that Mr Puhia was not authorised to be on the site and had misused company property.''
The meeting concluded with Mr Puhia's dismissal.
Mr Naden believed Mr Puhia had gone to work on November 16 specifically to dispose of rubbish but the authority did not accept that, saying he lived some distance away and only a small amount of rubbish was involved.
"Mr Puhia described his actions in disposing of the rubbish as spontaneous, or as an after-thought, upon not finding his glasses ...
"Mr Puhia also explained that many employees used the facility for the disposing of their own personal rubbish, a statement which Mr Milton Namara, an ex-Ovation employee, supported in his evidence.''
Mr Naden said he was not aware of employees doing that, and that he would have disciplined them if he had been.
A Ministry of Agriculture and Forestry compliance assessor said Mr Puhia's actions would not have jeopardised Ovation in any way.
"However, I find that Mr Naden genuinely understood the offence to be of such a serious nature as to jeopardise Ovation's ability to continue to process or export product, especially as regards the certification of Ovation as a Halal meat processor and exporter,'' the authority said.
Despite that, it found Mr Puhia had been unjustifiably dismissed and awarded him $14,157 as three months' wages, less income he received from Working for Families, plus five percent interest.
It also awarded him $6000 for hurt and humiliation.
However, the authority found Mr Puhia at fault also and therefore reduced his award by 75 percent.
"Mr Puhia was fully aware of the stringent hygiene standards which applied on the plant.
"In placing his personal rubbish in a non-food skip, Mr Puhia misused a company facility and did so recklessly without thought for any consequences that might ensue.
"To a significant extent I find Mr Puhia to have been the author of his own misfortune,'' the authority concluded.
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