IN THE EMPLOYMENT RELATIONS AUTHORITY
AUCKLAND
[2016] NZERA Auckland 116
5555042

BETWEEN

KIM LA
Applicant

AND

ALPHA LABORATORIES (NZ)
LIMITED
Respondent

Member of Authority:

Anna Fitzgibbon

Representatives:

Gregory Bennett, Advocate for Applicant
David Luttig, Advocate for Respondent

Investigation Meeting:

31 March and 1 April 2016 at Auckland

Submissions Received:

2 and 6 April 2016 from Applicant
6 April 2016 from Respondent

Date of Determination:

18 April 2016

DETERMINATION OF RELATIONS AUTHORITY

A.

The applicant, Ms Kim La’s employment was affected to her
disadvantage by the unjustifiable actions of the respondent, Alpha
Laboratories (NZ) Limited (Alpha).

B.

Ms La was unjustifiably dismissed from her employment by
Alpha.

C.

In order to settle Ms La’s personal grievance claims, Alpha is to
make payment of the following sums to her within 21 days of the
date of this determination:
(a)

$2,500

compensation

under

s.123(1)(c)(i)

of

the

Employment Relations Act 2000 (the Act), for humiliation,

 2
loss of dignity and injury to feelings in respect of her
unjustifiable disadvantages;
(b)

$15,000 as compensation under s.123(1)(c)(i) of the Act, for
humiliation, loss of dignity and injury to feelings in respect
of her unjustifiable dismissal;

(c)

Pursuant to s.128 of the Act, reimbursement of lost salary
of the following amounts:
(i)

$13,291.00 gross for the period from 11 April 2015
until 14 June 2015 when Ms La was unable to obtain
employment;

(ii)

$3,687.00 gross being the difference of income Ms La
would have earned at Alpha if she had remained in
employment and income actually earned for 5 weeks
from 15 June 2015 until 20 July 2015;

(d)

Pursuant to s.128(3) of the Act, reimbursement of lost
salary of $9,586.00 gross being the difference of income
Ms La would have earned at Alpha and income actually
earned by her for a further period of 13 weeks from 20 July
2015 until 19 October 2015.

D.

Costs are reserved.

Application by Alpha to strike-out parts of Ms La’s statement of problem
[1]

In a preliminary determination on 5 June 20151, the Authority declined

Alpha’s application pursuant to clause 12A of Schedule 1 of the Act to dismiss certain
paragraphs of Ms La’s statement of problem.
[2]

On 28 October 2015, the Authority began an investigation meeting into

Ms La’s claims that she was unjustifiably disadvantaged and subsequently
unjustifiably dismissed by Alpha.

However, the investigation meeting was

discontinued when it became apparent that there were language difficulties which

1

[2015] NZERA Auckland 158

 3
required the services of an interpreter proficient in both the Cantonese and Mandarin
languages.
[3]

The investigation meeting was adjourned and subsequently heard by the

Authority on 31 March and 1 April 2016.
The investigation meeting
[4]

The investigation meeting took two full days in the Authority. The pleadings,

witness statements, and submissions filed on behalf of the parties were of little
assistance to the Authority. As a result the investigation by the Authority was
unnecessarily long and difficult.

The representatives must take most of the

responsibility for this in my view.
[5]

Ms La provided the Authority with a witness statement. For Alpha, Ms Jean

Shim, Managing Director, Ms Sally Xie, an employee and Ms Summer Jin,
Operational Manager each filed witness statements.
[6]

Each of the witnesses giving evidence before the Authority confirmed either

under oath or by affirmation that their evidence was true and correct. Each witness
had the opportunity to provide any additional comments and information and did so.
[7]

To assist the Authority’s investigation, an interpreter proficient in both

Cantonese and Mandarin attended the investigation meeting.
[8]

As permitted under s.174 of the Act, this determination does not set out all the

evidence. The determination states findings and relevant facts and legal issues and
makes conclusions in order to deliver speedy, informal and practical justice.
Employment relationship problem
Ms La’s claims in the Authority
Warnings
[9]

Ms La was employed by Alpha for approximately 15 years, from 2000 until

her dismissal on 10 April 2015. Up until late June 2014, there were no issues with
Ms La’s performance. However, following her third promotion on 23 June 2014 to a
more senior role, Ms La was issued with a first warning regarding her performance on

 4
22 July 2014. On 7 November 2014, a final warning was issued by Alpha in respect
of its concerns with her performance.
[10]

Ms La says the warnings were not justified and has brought a claim in respect

of the final warning of 7 November 2014.
Suspension
[11]

Ms La says she was informed on 20 March 2015 that she was to attend a

meeting but was not told the purpose of the meeting. At the meeting Ms La was told
Alpha was conducting an investigation but was not given details and was not told
why.
[12]

Ms La was suspended from employment at the meeting on 20 March 2015

while Alpha conducted its investigation. Ms La says the suspension was unjustified
and claims a disadvantage in respect of it.
Dismissal
[13]

Ms La was dismissed for serious misconduct on 10 April 2015. Ms La says

that Alpha’s disciplinary process which led to her suspension and subsequent
dismissal was seriously flawed. Ms La says there were no grounds for Alpha to
conclude that her conduct constituted serious misconduct. Ms La claims that her
dismissal was unjustified and she seeks remedies.
Good faith
[14]

Ms La further says Alpha breached its obligations to treat her in good faith.

Ms La’s mother was terminally ill and Alpha was aware of this.
Alpha’s reply
[15]

Alpha denies Ms La’s claims.

Alpha says that following a thorough

investigation into allegations that Ms La was not able to perform the job to which she
had been promoted, it carried out an investigation and issued her with a warning.
Following a further investigation into complaints about her performance, a final
written warning was issued to Ms La by Alpha on 7 November 2014. Alpha says the
investigation and final warning issued were justified in the circumstances.

 5
[16]

Alpha also says that in early March 2015, Ms La failed to follow important

processes in relation to the training of staff and falsely certified that training had been
completed by her when it had not been. These were very serious issues for Alpha
especially in the industry within which it operates.
[17]

Alpha formed a view, following an investigation, that in all the circumstances,

dismissal for serious misconduct was appropriate. Alpha says Ms La was informed of
the preliminary decision that her conduct amounted to serious misconduct and was
given the opportunity to attend a meeting to discuss it. However, Ms La failed to
attend the meeting and on the basis of the information available to it, Alpha confirmed
its preliminary decision to terminate Ms La’s employment for serious misconduct.
[18]

Alpha says the decisions to issue warnings to Ms La and the subsequent

decision to terminate her employment were decisions of a fair and reasonable
employer in the circumstances.
The issues
[19]

The issues for the Authority to determine are:
(a)

Was Ms La unjustifiably disadvantaged by Alpha? If so, what remedies
if any, is she entitled to?

(b)

Was Ms La unjustifiably dismissed by Alpha? If so, what remedies if
any, is she entitled to?

(c)

Did Ms La contribute to her dismissal?

First Issue
Was Ms La unjustifiably disadvantaged by Alpha? If so, what remedies if any, is
she entitled to?
Alpha
[20]

Alpha is a New Zealand company specialising in the manufacture and export

of nutritional dietary supplements, including soft gel capsules, hard gel capsules,
tablets and a number of other products. Alpha manufactures and distributes these oral
dose supplements throughout Australia and New Zealand.

 6
[21]

Production of Alpha’s products is subject to standards set by the Therapeutic

Goods Administration (TGA) of Australia, New Zealand Medicines and Medical
Devices Safety Authority (MEDSAFE) and the NZ Food Safety Authority (NZFSA)2.
[22]

Alpha is subject to strict rules in relation to the manufacture of its products

and therefore has a number of standard operating procedures (SOPs) which it requires
its employees to strictly comply with. Quality control is vitally important and Alpha
has its own quality control team.
Ms La’s employment
[23]

Ms La was first employed by Alpha in approximately 2000, in the role of

sorting and packing operator. This position required Ms La to weigh tablets and to
sort and remove tablets which were of poor quality.
[24]

On 20 May 2005, Ms La was provided with a written employment agreement

for a new role as team leader sorting and packing, a role which commenced on 4 July
2005.
Promotion to Production Coordinator – May 2008
[25]

In May 2008, Ms La was promoted to the role of production coordinator. The

purpose of the position was described as follows:
This is a senior production support role which involves assisting
Senior Production Team Leaders and Production Manager with
administrative, compliance, leadership, continuous improvement and
team development tasks assuring that we continue to manufacture
Alpha Laboratory’s products in conformance [sic] with product
specifications, standard operating procedures and GMP principles.

[26]

A position description including accountabilities and responsibilities was

signed by Alpha and Ms La in May 2008.
Promotion to Production Senior Team Leader – May/June 2014
[27]

In late May 2014, Ms La received a further promotion. This promotion was to

the role of Production Senior Team Leader reporting to the Operational Manager who
was Mr Daniel Tan at that time.

2

www.alphalabs.co.nz

Following Mr Tan’s departure from Alpha,

 7
Ms Summer Jin was appointed to the position of Operational Manager from
approximately February/March 2015.
[28]

Ms La’s new position was described in the job description as a “senior

production team leader” role involving leading the production team to effectively
complete the day-to-day activities for production of products.
[29]

Ms Jean Shim is Alpha’s Managing Director. Ms Shim says she was happy

with Ms La’s performance and that was why she had been promoted during the course
of her employment.
Production Senior Team Leader role
[30]

The new employment agreement for the role of Production Senior Team

Leader was signed by Mr Lian Seng Buen, for Alpha, and by Ms La on 27 May 2014.
The employment agreement stipulated that it was to come into force on 23 June 2014.
The salary was $72,000 gross per annum.
[31]

Ms La undertook the duties of the Production Senior Team Leader from the

date she signed the employment agreement on 27 May 2014 until it came into force
on 23 June 2014.
[32]

The accountabilities for the role included overseeing health and safety issues,

managing the day-to-day execution of shop floor production activities which required
Ms La to have a customer focus and to be available if necessary to cover shifts
between working hours, to ensure that the production of products was carried out
smoothly and in accordance with Alpha’s SOPs.
[33]

Ms La worked long hours, 6 days a week in the role.

[34]

Ms La did not receive training in the new position. Ms Shim says that Ms La

had been with Alpha for a long time and did not need training.
First warning - 22 July 2014
[35]

At almost exactly the same time as Ms La’s new employment agreement was

to come into force on 23 June 2014, Ms Shim was made aware of concerns about
Ms La’s performance by the Quality Manager, Mr Rowland Ong. His concerns

 8
related to Ms La’s management of the production team. Ms Shim asked Mr Ong to
investigate his concerns.
[36]

Mr Ong held a meeting with Ms La on 26 June 2014. On 22 July 2014, Ms La

was issued with a “FIRST Warning Notification”.

Ms Shim did not attend the

meeting but made the decision that a warning should be issued despite Mr Ong
conducting the investigation and disciplinary process.
[37]

The notification set out various criticisms of Ms La’s performance in the new

role.

However, Alpha’s expectations for Ms La were vague and general.

The

“warning” concluded by stating:
We trust you appreciate the importance of the issues and concerns
raised. We welcome and appreciate your support and commitment to
ensure we have a culture of uncompromised adherence to our SOP
and requirements of cGMP requirements.

[38]

Ms La took no steps in relation to this warning and has not brought a claim

that it constitutes a personal grievance. However, it is relevant to the events leading
up to the final written warning issued to Ms La and to her subsequent dismissal.
Final written warning – 7 November 2014
[39]

Ms Shim says that she was concerned by Ms La’s management and she and

Alpha’s other director, Mr Buen, had an informal meeting with her in August 2014 at
Alpha’s offices to discuss their concerns. As the meeting was an informal meeting,
Ms La was not given details of the purpose of the meeting.
[40]

Ms La explained to Ms Shim and Mr Buen that she was struggling with

managing her whole area and so it was decided that Ms La would be offered a new
role, that of Production Administrator, and that Ms La’s scope of supervision would
be decreased. There was no alteration to Ms La’s salary.
New Position – Production Administrator
[41]

The position description which was provided to Ms La states that the purpose

of the position is that it is a:
… front-line administrator role which involves leading the production
teams at Bowden Road to effectively complete the day-to-day
activities for production of products within specification and meeting
schedules”

 9
[42]

Key tasks and responsibilities included: to ensure that employees had relevant

training in environment and health and safety; to oversee security of the site; asset
protection and material protection; manage manufacturing costs; ensure that all
production staff are provided with:
… initial and on-going training in SOP's, GMP principles and ensure
all GMP documentation including manufacturing instructions are
completed accurately and are a true reflection of operations … .

[43]

The change to the job description was signed by Ms Shim and Ms La on

15 August and 8 August 2014 respectively.
[44]

The alteration to Ms La’s job took place less than six weeks after she had been

promoted to the role of Production Senior Team Leader.
Performance Concerns
[45]

On 3 October 2014, Ms La was provided with a letter signed by the

Administration Manager, Ms Jessie Ler.

Ms Ler had become concerned about

Ms La’s performance, had approached Ms Shim about it and was authorised by
Ms Shim to undertake an investigation.
[46]

Ms Ler’s letter set out a number of allegations for investigation, including an

allegation that Ms La had falsified an induction record. The allegation was that two
new operators had started at Alpha, training was not completed but the induction form
signed by Ms La indicated the induction had been completed. Other allegations
included:







[47]

Failure to ensure production daily checks for your absence.
CQ10AL26512, SG7602, on 23 September 2014 – lack of
accountability to take actions on time which results in
significance financial loss.
Lack of accountability to follow up actions timely for low yield,
gelatine shortage and rework.
Failure to follow instructions for sorting area work management
to meet the planning schedule requirement and business
performance requirement.
Failure to follow instructions for packing area KPI to meet the
planning schedule requirement and business performance
requirement.
Failure to follow instructions from supervisor.

Ms La was invited to an investigation meeting on 14 October 2014 and was

informed that the outcome of the investigation may result in disciplinary action

 10
including a warning or dismissal. Ms La was invited to bring a support person with
her.
[48]

The meeting occurred on 17 October 2014. Ms Ler conducted the meeting

with Ms La. Ms Shim did not attend. The minutes of the meeting record that a report
had been provided to Ms Ler by Ms Jin concerning allegations which Ms La was to
respond to. The report was never provided to Ms La.
[49]

On 7 November 2014, Ms Ler wrote to Ms La seeking a meeting on

10 November 2014 to discuss the outcome of the investigation. However, on the
same date, a final warning notice was issued.
[50]

It is clear that there was no meeting to discuss the final warning with Ms La.

Rather, following the meeting on 17 October 2014, a decision was made to issue a
final warning to Ms La. Despite the letter to Ms La on 7 November 2014 inviting her
to a meeting to discuss the outcome of the investigation, this did not occur. Rather a
final warning was issued on 7 November 2014, prior to the meeting to discuss the
outcome of the investigation.
Raising personal grievance – 10 November 2014
[51]

Following receipt of the final warning, Ms La sought advice from Abbey

Employment Law Specialists. On 10 November 2014, Abbey Employment Law
Specialists wrote to Alpha raising a personal grievance claim in relation to the final
written warning and sought the provision of a number of documents. It appears all the
documents sought were not provided by Alpha. The personal grievance was not
pursued further at that time, it was pursued following Ms La’s dismissal on 10 April
2015.
Events leading up to dismissal
New Zealand Medicines and Medical Devices Safety Authority (MEDSAFE)
audit
[52]

MEDSAFE is a business unit of the Ministry of Health. It’s role is to ensure

that medicines and medical devices are acceptably safe. It is responsible for the
regulation of medicines and medical devices in New Zealand3.

3

www.medsafe.govt.nz

 11
[53]

On Monday, 9 February 2015, Mr Steven Adkins, from Alpha’s Audit Control

team, sent an email to staff including Ms La and Ms Jin about the audit of Alpha by
MEDSAFE which was to take place between Monday, 23 March 2015 and Friday,
27 March 2015.
[54]

Mr Adkins’ email requested the assistance of all staff during the audit and in

the weeks leading up to it and asked that the focus ensure “a successful outcome with
minimal follow up and that issues identified previously are not identified again”.
[55]

Ms Jin had just started in her role as Operational Manager at Alpha and was

Ms La’s direct manager. This was the first MEDSAFE audit that Ms Jin had
participated in. Ms Jin told the Authority that the audit was of critical importance to
Alpha and if Alpha failed the audit its licence would be suspended.
Alpha’s SOP training requirements
[56]

Ms Jin said that she was very concerned about the SOP training requirements

and asked Ms Shim for some further resource leading up to the MEDSAFE audit. On
4 March 2015 at 2.40pm, Ms Shim emailed Ms Jin to inform her that two staff
members could assist with the training log update for 4 hours later that day.
[57]

At 5.09pm on 4 March 2015, Ms Jin sent an email to Ms La setting out her

understanding of what was required regarding training and updating the SOP
management system. The email stated:
In my understanding we need to do:
1. Update staff correct position on their training manual- this is to
match with HR staff registration
2. Update staff SOP matrix by checking their current position and
responsibility and write down missing log for each staff
3. Send log list to kay to print out the missing Personal Training
Log
4. Check with Manual Training log that you filed, sign staff on the
personal training log that they have been done.
5. Get staff to sign on the personal training log
6. Update SOP management system
7. Review each staff training matrix, list all training not been done

 12
8. Organise training with staff, sign up log, update on SOP
management system.
Would you advise me how far you away of update SOP management
system? And what is your current plan to achieve 100% update before
auditing?
Point 1-7 need to be done tomorrow! I will need to see the hardcopy
of updated SOP management matrix for Bowden road
This is critical matter in our quality control. Please make your plan
and let me know any help you need, I can assist you to achieve the
target.

[58]

Ms Jin then spoke with Ms La about the training log update and received an

answer which worried her.
[59]

Ms Jin emailed Ms La at 5.31pm on 4 March 2015, stating:
Hi Kim,
By the phone conversation I don’t have the confidence that you
understand the training system and updating system. To sign up the
position manual training log only shows who has been trained on this
job at certain level, further this need to be updated on this person’s
personal training log, then update in SOP management system. As
far as I know Bowden Road has at least a 60% training not being
done I mean from practical training to update system. This issue
bring me extreme concern and worry to ensure that all training to be
done on time.
Best
Summer

Ms La’s mother’s illness
[60]

Ms La’s mother was critically ill in early February 2015. The illness was

terminal. Ms Jin was aware of Ms La’s mother’s serious illness as Ms La had
requested sick leave.
[61]

On 5 March 2015, Ms La asked Ms Jin if she could have an hour and a half off

between 2.30 and 4pm for a personal matter. Ms Jin was aware that this was to visit
her mother.
[62]

Ms Jin sent an email back to Ms La asking that she change the time that she

wanted off to another time. Her email ended by saying:
As you understand this is critical matter at moment.
understanding is highly appropriate! Thanks.

Your

 13
[63]

Ms Jin explained that the audit was critical and Alpha’s business required

Ms La’s presence at work. I find that Ms La was very stressed by her mother’s illness
and the pressures being placed on her by Ms Jin in respect of the impending audit.
[64]

Ms La worked on 6 March 2015, despite her mother being seriously ill.

Ms La’s father was also ill and unable to assist Ms La’s mother. Ms La was contacted
by her sister at 3pm that day to say her mother was being taken by ambulance to
hospital. Ms La was unable to leave work until 4.30pm. Ms La’s mother died at
10.30pm that night.
Meeting staff on 18 March 2015
[65]

Ms La was away from work following her mother’s death. Upon her return

she wanted to ensure that the training records of employees in the production team
were correct. Ms La was aware of the imminent MEDSAFE audit and Ms Jin’s
instructions to her.
[66]

On 18 March 2015 Ms La asked employees to check and sign their training

records. Ms La says she did not ask employees to sign that they had received training
if they had not in fact received training. Ms La says she asked that employees not
date the records so that she could check when training had been done by them and
date the records accordingly.
[67]

Ms Sally Xie was one of the employees spoken to by Ms La on 18 March

2015. At the investigation meeting, Ms Xie told the Authority she had received SOP
training but could not remember when it had occurred. On 18 March 2015, Ms Xie
said she and some others were asked by Ms La to sign off the training undertaken and
were told not to date the document.
[68]

Ms Xie says she was approached later that day by Ms Jin about the earlier

discussion with Ms La.
[69]

From the SOPs provided to the Authority, it appears Ms Xie had undertaken

training some time prior to 18 March 2015 but the date of the training had not been
documented on the training log.

 14
Ms La’s suspension from work
[70]

On 19 March 2015, Ms Jin reviewed Ms La’s work and became concerned

regarding the completion and sign-off by her of SOP personal training documents.
Ms Jin informed Ms Shim of the issue. Ms Shim requested Ms Jin to investigate the
matter.
[71]

On 20 March 2015, Ms La was requested to attend a meeting but was not told

what the meeting was about.
[72]

At the Authority’s investigation meeting, Ms Shim said that Ms La was aware

of what the meeting was about and that she was informed of the reasons at the
meeting on 20 March 2015. However, the minutes of the meeting, which Ms Shim
said accurately recorded the meeting on 20 March, did not give details of Alpha’s
concerns about Ms La. The minutes of the meeting state:
Alpha’s senior management team were advised that an event had
occurred which may possibly constitute serious misconduct on
19 March 2015. No allegation of misconduct was made but further
investigation was suggested.

[73]

The minutes record that Ms La requested an explanation of the allegation but

was informed by Ms Shim that the company “could not do so until the investigation
was conducted at which time this would be advised and Kim would be given the
opportunity to respond”.
[74]

Ms La was suspended and required to surrender her access card, mobile phone

and laptop for the duration of the investigation.
[75]

On the same day, a letter was sent to Ms La which confirmed her suspension.

The letter is signed by Ms Shim and states:
I confirm our meeting today to consider the matter of suspension and
that you have had the opportunity to provide reasons for not
suspending you. Those reasons are set out in the minutes taken by
Steven Adkins of which you will be provided with a copy. I have
considered those reasons and advice that this letter is notice of your
suspension from duties until a formal meeting can be convened.
The reason for the suspension is that I am in the process of
investigating certain complaints regarding the possible allegation for
your misconduct. On the face of it, I consider this possible allegation
for misconduct as serious. Depending on my initial fact finding you
will be kept informed. If there are sufficient grounds for a
disciplinary investigation, you will be informed of the specific nature

 15
and detail of these complaints. You are suspended on full pay and
are not to enter company premises without prior arrangements with
me.

[76]

Ms La was still unaware of what her alleged serious misconduct was.

[77]

Ms La was unaware of what the allegation of serious misconduct was prior to

being asked to attend a meeting on 20 March 2015. At the meeting on 20 March
2015, she was not provided with details, despite asking for them. Ms La was not
provided with the allegations of serious misconduct in the letter of suspension which
followed the meeting. Ms La was therefore unable to address or consider properly
alleged issues of serious misconduct. This was unfair.
Test of justification
[78]

By raising grievances about the final warning received by her on 7 November

2014, and about her suspension on 20 March 2015 and bringing them to the Authority
for investigation and determination, Ms La has required the Authority to apply the test
of justification under s.103A of the Act.
[79]

Under this test, the question of whether these actions were justifiable must be

determined, on an objective basis, by considering whether Alpha’s actions and how
Alpha acted were what a fair and reasonable employer could have done in all the
circumstances at the time the actions occurred.
[80]

In applying s.103A, the Authority must also consider four particular factors set

out in s.103A(3) as well as any others it thinks appropriate. The four particular
factors relate primarily to the way in which complaints about an employee are
investigated, whether the employee concerned has been properly notified of the
complaints and provided with a proper opportunity to respond to them and whether
the employer has genuinely considered the employee’s responses4.
[81]

The test in s.103A is to be applied with the proviso that actions must not be

determined to be unjustifiable solely because of process defects if they were minor
and did not result in the employee being treated unfairly5.
[82]

The final written warning was unjustified. The lack of participation by the

decision-maker, Ms Shim, her failure to properly investigate the allegations which led
4
5

Section 103A(3) and (4) of the Act
Section 103A(5) of the Act

 16
to the final warning and her failure to allow Ms La a reasonable opportunity to
respond before issuing the warning breached the factors set out in s.103A(3) of the
Act.

Those factors echo the common law requirements of natural justice and

procedural fairness in such a disciplinary process.
[83]

Ms La’s suspension was also unjustified. Ms La was not informed prior to her

suspension of what the allegations of serious misconduct were so that she could
address them before any disciplinary action was taken.
[84]

The answer to the first issue is “yes”, the final warning and the suspension

were unjustified. These actions amounted to unjustified disadvantages under the Act.
Remedy
[85]

Ms La did not provide the Authority with a great deal of evidence of the

impact of the final warning and suspension on her.

Ms La did give evidence

concerning her mother’s serious ill health at the time leading up to her suspension.
This would have been a very stressful time for Ms La.
[86]

I consider an award of $2,500 compensation pursuant to s123(1)(c)(i) of the

Act appropriate in the circumstances. Accordingly, I order Alpha to pay Ms La
$2,500 in distress compensation in respect of the unjustifiable disadvantages.
Second Issue
Was Ms La unjustifiably dismissed by Alpha? If so, what remedies if any, is she
entitled to?
Ms Jin’s investigation – 23 March 2015
[87]

Following Ms La’s suspension on 20 March 2015, at Ms Shim’s request,

Ms Jin met with some employees and asked them questions regarding the SOP
training that they had received.

Mr Luttig, for Alpha, prepared the written

questionnaire which Ms Jin used when questioning the employees.

Completed

investigation questionnaires were provided to the Authority for three employees.
[88]

Ms La was not aware of the details of Ms Jin’s investigation, nor was she

provided with the investigation questionnaires.

Ms La saw the completed

questionnaires for the first time at the Authority’s investigation meeting.

 17
[89]

On 26 March 2015, Ms La received a letter from Ms Shim requesting that she

attend a meeting on 30 March 2015 to discuss an allegation of serious misconduct.
This was the first time that Alpha had informed Ms La of its allegation that she had
falsified the personal training record of various employees. The letter referred to
employees who Ms La was alleged to have instructed to sign SOP forms stating that
they had received specific training and achieved the requisite competency.
Further details of alleged serious misconduct
[90]

On 31 March 2015, Mr Luttig for Alpha emailed Ms La’s representative

alleging that:
As training facilitator you have certified (installed) and dated that
Sally Xie has achieved the required competency levels:




Instructed – certified and dated 6 February 2015.
Competent – certified and dated 6 February 2015.
Experienced – certified and dated 6 February 2015.

This certification and sign off could not have taken place on
6 February 2015 because you were not at work that day.
This alleged action described above constitutes fraud and dishonesty
which if found to be accurate and true will break down all the trust
and confidence between Alpha Laboratories and yourself.

[91]

A request was made for Ms La to attend a meeting on 2 April 2015.

[92]

The Authority was provided with copies of email correspondence between the

representatives of the parties in respect of a further disciplinary meeting.
[93]

Mr Bennett, Ms La’s representative, was unable to attend the meeting on the

date proposed. An alternative date of 8 April 2015 was proposed but this too was not
suitable. Mr Bennett required certain documentation from Alpha before any meeting.
Not all the documents were provided. Ms Shim says all relevant documentation had
been provided and did not see the necessity to provide all the documents requested on
Ms La’s behalf.
Meeting on 8 April 2015
[94]

Mr Luttig emailed Ms La’s representative that if Ms La did not attend the

meeting, Alpha would consider proceeding with the meeting in her absence. Ms La
did not attend the meeting on 8 April 2015 and the meeting proceeded in her absence.

 18
Dismissal letter
[95]

[96]

On 8 April 2015, Ms Shim wrote to Ms La setting out her findings that:


You wilfully falsified SOP 085 Personal Training Record for
Sally Xie….



I have considered the written statement made by Sally Xie dated,
March 2015 that you have instructed her to sign off in certain
Training Records without dating said documents…I find on the
balance of probabilities that you have given the instruction as
described to Sally Xie. Through these actions you have been
deceitful, fraudulent and dishonest towards your employer.

Ms Shim concluded the letter by stating that she was considering terminating

Ms La’s services on “the serious acts of misconduct”.

Ms La was offered the

opportunity to respond to the “proposed sanction of termination before 12pm on
Friday, 10 April 2015…”
[97]

Further correspondence ensued between the representatives for both parties.

The dismissal for serious misconduct was confirmed by letter dated 8 April 2015,
which according to Alpha was a mistake and was in fact dated 10 April 2015.
[98]

I find Ms La was unjustifiably dismissed by Alpha on 10 April 2015. The test

of justification referred to in paragraph [78] above applies in respect of dismissal.
No training
[99]

Ms La did not receive any training when promoted to the role of Production

Senior Team Leader in June 2014. When Ms La was found not to be performing as
expected in the role, her position was altered to that of Production Administrator in
August 2014. Again, no training was provided to Ms La.
MEDSAFE Audit
[100] Alpha was notified in February 2015 that it was going to be the subject of an
audit by MEDSAFE.

Ms Jin, who had only just been appointed to the role of

Operational Manager, was concerned to ensure that the audit went smoothly. Ms Jin
instructed Ms La to ensure the training records were complete.
[101] At the same time as the preparations for the audit, Ms La’s mother was
critically ill and died.

 19
[102] After Ms Jin discovered what she thought to be incomplete SOP training
documents, Ms La was required to attend a meeting on 20 March 2015. Ms La was
not given notice of what the meeting was about, was not informed of the allegations
which were considered to amount to serious misconduct and was not informed that the
outcome of the meeting was possible suspension for serious misconduct. This is not
the action of a fair and reasonable employer.
[103] The subsequent “investigation” conducted by Ms Jin was not fair. A very
small number of employees were interviewed by her. The questions asked were not
her questions but those prepared by Mr Luttig. Ms Shim was the decision maker but
failed to properly participate in the investigation.
[104] Following an interview with Ms Sally Xie on 23 March 2015, Ms Jin formed
the view that Ms La had requested employees to fill out their training records but not
date them. This was the basis for the allegation that Ms La had falsely certified that
training had been completed when it had not.
[105] At the Authority’s investigation meeting, Ms Xie said that she had received
training approximately 1- 2 months before Ms La asked her to update the training
records. Ms Xie said that Ms La asked her to sign off the training she had received
but not to date the record. Ms Xie did not ask Ms La why she was not to date the
record and neither did the other employees.
[106] I find that Ms La did not “falsely” certify that training had been completed by
employees. If she had been questioned at the time, Alpha would have been aware of
this. The training records were incomplete. It was not clear whether this was a
situation inherited by Ms La when she moved in to the role of Production
Administrator. Ms La, in an effort to ensure training records were correct, asked
employees to sign off SOP training they had completed. Ms La subsequently entered
the dates on the SOP forms. The dates entered were those on which Ms La believed
the training had been taken.
Did Ms La’s actions constitute serious misconduct?
[107] In assessing whether a finding of serious misconduct and a consequent
outcome of dismissal is fair and reasonable, consideration must be given to whether

 20
Ms La’s conduct was such that it “deeply impairs or is destructive of that basic
confidence or trust”. This will be a matter of degree in the circumstances6.
[108] In Makatoa v. Restaurant Brands (NZ) Ltd, it was held7:
The mere fact that consequences are very serious does not mean that
the act which produced or contributed to those consequences
necessarily amounts to serious misconduct. That kind of misconduct
will generally involve deliberate action inimical to the employer’s
interests. It will not generally consist of mere inadvertence,
oversight, or negligence however much that inadvertence, negligence,
or oversight may seem an incomprehensible dereliction of duty.

[109] Ms La was dealing with her mother’s illness at the same time as having to
ensure that the training records for her department were in order for the MEDSAFE
audit. Ms La was acting on instructions from Ms Jin.
[110] Ms La was found by Alpha to have wilfully falsified Ms Xie’s training record
and had to have been “deceitful, fraudulent and dishonest”. Ms La was dismissed for
serious misconduct. These are very serious allegations.
[111] I find there was insufficient evidence to support such a finding. Where a
serious charge is made to support a dismissal, the supporting evidence must be “as
convincing in its nature as the charge is grave …”8.
[112] Alpha did not have the supporting evidence to find that Ms La had been
fraudulent and dishonest. If Alpha had carried out a fair process, Ms La would have
been able to explain that she was ensuring the SOP training records were in order for
the MEDSAFE audit as requested. There was no deceit or dishonesty, the training
had been completed and Ms La sought confirmation from employees of the details of
their training so that the records were correct for the audit. Ms La subsequently dated
the records. This was not ideal but explicable in view of the MEDSAFE audit,
Ms Jin’s instructions and Ms La’s mother’s illness and death.
[113] The answer to the second issue is “yes”, Ms La’s dismissal was unjustified.
Dismissal for serious misconduct was not the action of a fair and reasonable employer
in the circumstances.

6
7
8

BP Oil NZ Ltd [1992] 3 ERNZ 483 (CA)
Makatoa v. Restaurant Brands (NZ) Ltd [1992] 2 ERNZ 311 at para.[319]
Principle affirmed by the Court of Appeal in Honda New Zealand Limited v New Zealand
Boilermakers etc Union [1991] 1 NZLR 392 (CA) at 394-395

 21
Remedies
Compensation under s.123 of the Act
[114] Ms La had been employed by Alpha for 15 years. During her employment she
had been promoted three times. Ms La was a valued employee who worked very hard
for Alpha.
[115] Ms La says following her dismissal she could not sleep, her mother had just
died and she was left looking after her sick father. Ms La was very worried about
money. Ms La was ashamed and could not tell her friends what had happened.
[116] I consider Ms La’s hurt and humiliation was severe as a result of her
unjustified dismissal. I award $15,000 compensation under s.123(1)(c) (i) of the Act.
I order Alpha to pay Ms La compensation of $15,000.
Reimbursement of lost remuneration under s.128 of the Act
[117] Ms La seeks lost remuneration for 3 months following her dismissal under
s.128(2) of the Act.
[118]

Ms La says she attempted to find another job work but was unable to do so

until 15 June 2015. Ms La seeks reimbursement of lost remuneration for the period
11 April 2015 until 14 June 2015 of $13,291.00 gross. I make an award accordingly.
[119] Ms La seeks reimbursement of lost remuneration being the difference of
income she would have earned at Alpha and income earned for the 5 week period
from 15 June 2015 when she gained employment. The amount sought is $3,687
gross. I make an award accordingly.
[120] Ms La seeks lost remuneration being the difference in income she would have
earned at Alpha and income actually earned by her for a further period of 13 weeks
totalling $9,586.00 gross. The Authority has a discretion to make such an order under
s128(3) of the Act. I make an order accordingly.
Contribution
[121] The Authority is bound under s124 of the Act to consider whether Ms La
contributed to her dismissal and if so to reduce remedies awarded. I do not accept

 22
Ms La contributed to her dismissal. Accordingly, remedies awarded will not be
reduced.
Costs
[122] Costs are reserved. Ms La has 14 days from the date of this determination to
file a memorandum as to costs. Alpha has 14 days from receipt to file a memorandum
in reply.

Anna Fitzgibbon
Member of the Employment Relations Authority