IN THE EMPLOYMENT RELATIONS AUTHORITY
WELLINGTON
[2016] NZERA Wellington 43
5520901

BETWEEN

MEREANA TAYLOR
Applicant

AND

TENNENT HOTELS LIMITED
Respondent

Member of Authority:

Trish MacKinnon

Representatives:

Sandy Dodunski, Counsel for Applicant
Andrew Laurenson, Counsel for Respondent

Investigation Meeting:

21 January 2016 at New Plymouth

Submissions Received:

16 October 2015 and on the day from the Applicant
22 October 2015 and on the day from the Respondent

Determination:

11 April 2016

DETERMINATION OF THE AUTHORITY

Employment relationship problem
[1]

Mereana Taylor was employed by Tennent Hotels Limited at the Devon Hotel

in New Plymouth from February 2006 until her dismissal on 6 June 2014. Ms Taylor
was employed as a room attendant/night porter. She was dismissed for sleeping on
the job following a formal disciplinary meeting. Ms Taylor claims her dismissal was
unjustifiable and seeks financial remedies.
[2]

Tennent Hotels Ltd (Tennent) denies Ms Taylor’s dismissal was unjustifiable

and says her actions compromised the security, health and safety of its guests. For
that reason, it considered her actions amounted to serious misconduct. Tennent says if
the Authority finds Ms Taylor’s dismissal to have been unjustifiable for any reason,
then her actions contributed significantly, if not wholly, to the situation which gave
rise to her dismissal.

 2
Events giving rise to the dismissal
[3]

Ms Taylor's role at the Devon Hotel included working as the night porter on

two nights of the week, starting at 11pm and finishing at 7am the following day. On
the night of Friday, 30 May 2014, Ms Taylor started duty at 11pm. By her evidence,
there were approximately 44 guests in the hotel that night. She was the only person
on duty after the hotel receptionist left at or around midnight.
[4]

Ms Taylor says she completed her regular jobs such as locking up all the

doors, doing the laundry, the toilets and the vacuuming. She recalls that her back was
very stiff and sore and she was generally not feeling very well. Her back had been
playing up for about a week. She says she sat down for a brief period to take the
weight off her feet and to relieve her back. She does not recall going to sleep. She
does recall that two kitchen staff arrived at some point, with one of them helping her
to get up because her back was so stiff and sore. Ms Taylor says she then continued
with her duties until 7am.
[5]

Peter Tennent is one of two Managing Directors of Tennent Hotels, the other

being his wife, Rosemary Tennent. Mr Tennent's home is located on the site of the
Devon Hotel. He says that at approximately 5.40am on Saturday, 31 May 2014, the
kitchen staff knocked at his door to advise they had not been able to get into the hotel
and were unable to get any response from the night porter. Mr Tennent let the staff in
to the hotel and returned to his home.
[6]

Shortly after 9am that day Mr Tennent emailed the following message to the

General Manager of the Devon Hotel, Robert Davies1:
This morning the morning chef and morning restaurant controller knocked on
my door about 5.40am, as they were unable to get Maryanne or gain access
to the hotel. I let them in.
They found her asleep on the couch outside Governers. I have no idea if the
phone was turned on or off.
Unacceptable.
Please follow through.
PS:
Obviously their time cards shouldn't penalise them based on
Maryanne's incompetence.

1

With salutation and sign off omitted

 3
[7]

On Sunday, 1 June 2014, Ms Taylor was on duty again, this time during the

day. She had started work in the laundry at approximately 9am. Mr Tennent asked if
he could talk to her and took her through to the housekeeper’s office. Ms Taylor says
Mr Tennent stood over her and told her that she had been caught sleeping and he
wanted an apology. He said he had had to be woken up by the incoming kitchen staff
the previous day because Ms Taylor had not opened the locked outside door. It was
part of her duties to do so in order that the kitchen staff could enter the building in the
mornings to commence their shifts.
[8]

Ms Taylor says she was surprised by the accusation that she had been sleeping

on duty and by Mr Tennent’s intimidating manner. She says she tried to explain to
Mr Tennent that she was tired and not feeling well. She was not confident that she
had heard everything Mr Tennent was saying but she does recall him saying he was
going to speak to the housekeeper about the matter and he told her that he was giving
her an “official warning”. Ms Taylor says the meeting ended at this point and
Mr Tennent went back to his office. Ms Taylor continued with her duties.
[9]

Following the meeting Mr Tennent sent a further email to Mr Davies as

follows:
I have just spoken with Mary-anne.
She tells me she has not wanted to do night portering for three years, and
Yvonne has been told that. She says she is not well.
She says she just nodded off. But, then acknowledged she must have been
asleep for at least 40 minutes. She claimed to have cleaned toilets, even
though they had to be done again.
I told her to refrain from laughing when I spoke to her as a serious issue.
I told her this was an official warning

[10]

Mr Tennent says that at no stage in his discussion with Ms Taylor did he

suggest to her that the matter had been fully dealt with. He says he made it clear to
her he wanted the matter dealt with appropriately and that it would be when her
manager returned to the hotel.
[11]

On Wednesday, 4 June 2014 Ms Taylor received a letter from Mr Davies

inviting her to a disciplinary meeting on Thursday 5 June 2014. The letter advised her
of the allegations:

 4
(a)

That she had been sleeping on the job on the morning of Saturday,
31 May 2014 between 3.44am and 5.34am; and

(b)

That her duties were not performed, toilets were not cleaned and that
the security of the guests and hotel had been compromised.

[12]

The letter informed Ms Taylor that she was welcome to have a representative

present at the meeting, and she was encouraged to do so. It also informed her the
matters were serious and termination of her employment was being considered.
[13]

The disciplinary meeting took place on 6 June 2014 due to Ms Taylor’s

unavailability the previous day. An audio recording of the meeting was made by the
employer and made available to the Authority and Ms Taylor's representative.
Mr Tennent and Mr Davies were both present.

At the outset of the meeting,

Mr Davies noted that Ms Taylor did not have a support person with her and asked her
if she wished to adjourn. Ms Taylor confirmed it was her choice not to have a support
person present. It was reiterated to her that she could have somebody with her.
[14]

Mr Davies referred Ms Taylor to the fact that she had been sleeping on the job

on 31 May between 3.44am and 5.34am. He said her nap had been captured on the
hotel's CCTV2 when an employee had come down and woken her up in the morning.
Ms Taylor at this point said “yeah”. Mr Davies informed her that this was viewed as
very serious with the consequences that she had not performed her duties and had
compromised the security of the hotel.
[15]

He informed Ms Taylor that he and Mr Tennent were considering what

options were available and whether her employment would be terminated or not. He
said he understood this was not the first time she had slept on the job. Ms Taylor
agreed but said on the previous occasion, a year earlier, she had been ill.
[16]

When asked if she had any comment to make about sleeping on the job on

31 May, Ms Taylor said she had no comment. She agreed she had been sleeping. She
disagreed about the number of duties that she had left unperformed. Ms Taylor’s
explanation was that she had just collapsed and she did not know she was going to go
to sleep. She agreed with a suggestion made by Mr Tennent that she had fainted.

2

Closed Circuit Television

 5
[17]

Mr Tennent and Mr Davies took a five minute adjournment in the course of

the meeting after which they returned and informed Ms Taylor of the decision to
terminate her employment. Ms Taylor expressed the view that she expected to be
dismissed and that she had enjoyed her years at the hotel.
Issues
[18]

The issues for determination are:
(a)

Was Ms Taylor’s dismissal justifiable; and if so

(b)

What remedies are appropriate; and

(c)

Did Ms Taylor contribute to the situation which led to her personal
grievance?

Legal considerations
[19]

Whether or not a dismissal is justifiable is to be determined on an objective

basis by applying the test in s.103A of the Employment Relations Act 2000 (the Act).
The test is whether the employer’s actions and how the employer acted were what a
fair and reasonable employer could have done in all the circumstances at the time the
action occurred.
[20]

The Act requires the Authority to apply this test to Ms Taylor’s dismissal. In

addition to any other factors it considers appropriate, the Authority is required to
consider:
(a)

Whether the employer investigated the allegations against Ms Taylor
sufficiently, taking into account the resources available to it; and

(b)

Whether it raised its concerns with Ms Taylor before dismissing her;
and

(c)

Whether it gave Ms Taylor a reasonable opportunity to respond to its
concerns before dismissing her; and

(d)

Whether it genuinely considered Ms Taylor’s explanations in relation
to the allegations against her before dismissing her.

 6
[21]

The Act precludes the Authority from finding a dismissal to be unjustifiable

solely because of defects in the employer’s process if the defects were minor, and if
they did not result in the employee being treated unfairly.
Evidence of the parties
[22]

Evidence was given, both in written form and orally by Ms Taylor, on her own

behalf. Mr Davies, Mr Tennant and Jonathan Wetherall gave evidence on behalf of
Tennent Hotels Limited. Mr Weatherall is the director of JW Security Services Ltd
and he is a security technician. His evidence related to the CCTV camera within the
Devon Hotel which he installed and is responsible for servicing.
[23]

There were few areas of dispute over the facts relating to this matter, most of

which I have outlined above. In accordance with s. 174E of the Act I will not set out
a record of all the evidence heard or received.
Oral indication
[24]

After hearing the evidence of the parties and considering submissions of

counsel, I gave the parties an oral indication of my preliminary findings. These were:
(a)

I find it more likely than not that Ms Taylor was asleep for 1¾ hours
on the morning of 31 May 2014. I am not persuaded she collapsed or
fainted.

(b)

I accept in the context of Ms Taylor’s role of night porter that this is a
serious concern to the respondent as it impacts on the security and
safety of the hotel and its guests.

(c)

I find Mr Tennent’s meeting with Ms Taylor of 1 June 2014, in which
he gave Ms Taylor "an official warning", was unfair to her for the
following reasons:
(i)

she had no advance notice of such a meeting; it was first thing
in the morning; and she had no time to gather her thoughts;

(ii)

she was told her employer’s view that her behaviour was
unacceptable before she had had an opportunity to explain her
perspective of what had occurred.

 7
(d)

I find Mr Tennent’s intervention and his email on the morning of
31 May 2014 to Mr Davies likely to have compromised Mr Davies’
investigation. Mr Tennent had predetermined that she had been asleep
before he had spoken with her. In his email asking Mr Davies to
"follow through", he had referred to her conduct as being
"unacceptable" and described it as “incompetence”.

(e)

With regard to Mr Davies’ investigation I find:
(i)

There was no corroboration supporting his evidence of having
interviewed any other employees as part of the investigation;

(ii)

I have reservations over the extent of the investigation carried
out and whether Ms Taylor’s claims of her sore back/
collapsing/fainting were explored at all as they appeared to
have been quickly discounted. A fair and reasonable employer
could be expected to have requested that Ms Taylor obtain
medical evidence, and to have considered that evidence, before
deciding to dismiss her.

(f)

I have reservations about the meeting of 6 June 2014 and the fairness
with which it was conducted:
(i)

While meaning no disrespect to Ms Taylor, I suggest a fair and
reasonable employer would have told her it was in her best
interests to have a representative at the meeting.

(ii)

I find, without doubting Mr Davies’ integrity, the strong stance
his employer had taken was likely to have influenced his
investigation;

(iii)

I find it unfair that Mr Tennent and Mr Davies concluded,
during their five minute adjournment in the course of the
meeting of 6 June, that Ms Taylor had deliberately gone to the
couch for the purpose of rest and sleep and relied on that for the
decision to terminate her employment without giving her the
opportunity to comment on that conclusion.

 8
(g)

If, on consideration of these preliminary findings, I determine
dismissal to be unjustified, I am likely to find that Ms Taylor’s
contribution is significant.

[25]

After reviewing the evidence I confirm the preliminary findings I gave to the

parties at the conclusion of the investigation meeting. On reflection I withdraw the
suggestion I made at (f)(i) above regarding representation. However, as that was a
suggestion rather than a finding, it does not alter my overall view of the matter. In
accordance with my preliminary findings, I find Ms Taylor was unjustifiably
dismissed.
Remedies and contribution
[26]

Ms Taylor seeks the reimbursement of six months' lost wages arising from her

unjustified dismissal. She says she has been unable to obtain alternative employment
because she has no reference from Tennent. She estimates the value of the wages on
the basis of 22 hours of work per week paid at $14.50 per hour to be $8,294.00 gross.
Additionally, Ms Taylor seeks compensation for hurt and humiliation in the sum of
$5,000. She also seeks costs.
[27]

The Act provides at s. 128 that where an employee has a personal grievance,

and has lost remuneration as a result of it, the Authority must order the employer to
pay the lesser of a sum equal to the lost remuneration or three months' wages. The
Authority has the discretion to award a greater sum if it sees fit. In this instance I am
not persuaded that an award in excess of three months is warranted. While I am
satisfied from Ms Taylor's evidence that she made some attempts to obtain alternative
employment, the lack of evidence to support those efforts leads me to conclude that
no more than three months' wages is justified.
[28]

The amount she seeks for hurt and humiliation is moderate and appropriate in

the circumstances and, subject to contribution findings, I order Tennant to pay Ms
Taylor the sum of $5,000.
[29]

In deciding the nature and extent of remedies to be provided for Ms Taylor's

personal grievance, I am required to consider the extent to which her actions

 9
contributed towards the situation that gave rise to her grievance and, if warranted, to
reduce accordingly the remedies I would have otherwise awarded.3
[30]

As noted earlier, counsel for Tennent submits that Ms Taylor's actions

significantly, if not wholly, contributed towards the situation that gave rise to her
dismissal. Counsel for Ms Taylor, unsurprisingly, submits there was no contribution
by Ms Taylor.
[31]

In line with the indication of preliminary findings given to the parties at the

investigation meeting I find there was contribution by Ms Taylor and it was
significant. Taking into account Ms Taylor's acknowledgement that she did sleep
during her working hours on the morning of 31 May 2014 and that it was not the first
time she had done that, I assess her contribution at 40%. The remedies awarded are
accordingly reduced by that percentage.
Determination
[32]

Tennent Hotels Limited is ordered to pay Mereana Taylor:
(a)

Under s. 128(2) of the Act the sum of $2,488.20 gross;4 and

(b)

Under s. 123(1)(c)(i) of the Act the sum of $3,000 without reduction.5

Costs
[33]

The issue of costs is reserved.

Trish MacKinnon
Member of the Employment Relations Authority

3
4
5

Section 124 of the Act
Being three months' remuneration of $4,147 less 40%
Being $5,000 compensation less 40%