Matters got worse when the superintendent asked Mirko why he was only providing “two or three minutes” notice of his non-attendance for a shift on May 19 this year.
He claimed Mirko became upset and swore at him, not stopping when he asked him to do so.
The meeting ended when Mirko said he did not want to discuss it further.
Mirko told the authority he had an emotional response to being confronted about his providing short notice of sick leave because he rarely took such leave and had given notice as soon as he could.
The confrontation
Things came to a head soon afterwards when the superintendent said Mirko blocked his vehicle to prevent him from leaving and spoke aggressively to him.
He said he felt threatened.
A complaint was raised and Mirko was suspended on full pay pending an investigation.
Mirko claimed he had been bullied by his boss on a number of occasions, but those claims were dismissed by the club as lacking substance.
He was sacked in June for serious misconduct and issued with a trespass notice from the club in July.
Mirko claimed he was unjustifiably dismissed and sought interim and permanent reinstatement.
The club said his sacking was warranted and opposed his claims.
After an initial application to the authority by Mirko, the parties attended mediation but did not resolve the issue.
Disciplinary process ‘flawed’
Mirko told the authority his dismissal was unjustified because the outcome of the disciplinary investigation was predetermined.
He said the disciplinary process was flawed because key witnesses were not interviewed, key CCTV footage of the incident was not played to him during the investigation meeting, and his contextual evidence and evidence in mitigation were not considered.
The club said it acted as a fair and reasonable employer could have done, given all the circumstances at the relevant time.
It submitted Mirko was dismissed after a fair disciplinary process in which it had been found serious misconduct had occurred.
Mirko said he attempted to raise health and safety issues before and during the disciplinary process.
He said he had raised concerns about the superintendent’s management style with another manager, which had not been formalised.
Mirko accepted his behaviour on May 19 was unreasonable and unnecessary, and that he owed the superintendent an apology.
He submitted that he believed he could work effectively with the benefit of counselling and wanted the club to put a restorative process in place.
Club disputes reinstatement application
The club said permanent reinstatement was neither practical nor reasonable. It submitted that since his dismissal Mirko had engaged in inappropriate behaviour, including sending hostile messages to staff, such that they were fearful.
The club said the superintendent would not feel safe managing Mirko again and that a restorative process would not be possible because trust had been broken.
Employment Relations Authority member Eleanor Robinson said the balance favoured interim reinstatement.
While there was some concern as to the relationship between the parties since the dismissal and legal challenge to that decision, she said it was not unexpected that emotions and tensions accompanied such a process.
However, she said there was no evidence to suggest that would continue and prevent the previous cordial relationship being re-established, given Mirko’s insight into his behaviour and the assistance of a restorative process being undertaken.
Investigations continue
Robinson ordered interim reinstatement.
She allowed the club, at its discretion, to take steps to initiate a restorative process before Mirko’s return and to restore him to the payroll until that process is in place.
She said the authority would convene a case management conference to set timetable directions for the investigation of Mirko’s substantive claims.
Robinson said she granted Mirko’s application for the matter to be dealt with urgently because that was the usual procedure for dealing with an application for an interim reinstatement.
Findings of fact by the authority in the determination were provisional and could change once the claims had been fully investigated and all witnesses had been examined on their evidence.
At the substantive hearing there would be an opportunity to fully test the relevant evidence and disputed questions of fact and law, she said.
Muriwai Golf Club had no comment to make on the matter while Mirko could not be reached for comment.
Al Williams is an Open Justice reporter for the New Zealand Herald, based in Christchurch. He has worked in daily and community titles in New Zealand and overseas for the last 16 years. Most recently he was editor of the Hauraki-Coromandel Post, based in Whangamatā. He was previously deputy editor of the Cook Islands News.
