Ms Kensington was dismissed from her long haul flight attendant job when she defied her manager’s instructions and took domestic leave to care for her ill sister Vania earlier this year who had just had a baby.
In March Ms Kensington, who was on leave and at the beach for the day, received a text from her sister asking if she could come over the next day as she was unwell. Vania’s husband, Andrew, would also be away at work.
Ms Kensington then organised leave. But after contacting her manager she was told she was ineligible for domestic leave.
Ms Kensington then contacted her union, the Flight Attendants and Related Services Association, and was told they believed she was “protected to take sick leave for the care of your sister”.
Ms Kensington informed her manager she would not be coming in the following day, a Monday, and to contact her union representative if there were any problems. As a result of the incident, Air NZ held disciplinary meetings with Ms Kensington and began an investigation into her conduct.
The airline said they were concerned Ms Kensington “may have falsely declared the need to look after your sister and used this reason to secure further time off”. A decision to dismiss, issued on May 10, was appealed by Ms Kensington and brought before the Employment Relations Authority.
Ms Kensington argued she was unjustifiably dismissed as her actions had not amounted to a misuse of sick leave and the disciplinary process followed by Air NZ was unfair. During the matter, Air NZ successfully applied to the authority to access Ms Kensington’s bank records and Facebook page for the relevant time period.
Concerns were raised after photos of Ms Kensington at Auckland’s Takapuna beach appeared online at the time she was trying to organise leave to care for her sister. Despite this, Ms Kensington’s efforts against the airline were today rewarded when the authority issued a determination in her favour.
Authority member Tania Tetitaha stated in the determination the dismissal was “not what a fair and reasonable employer could have done in all the circumstances at the time it occurred”. However, the investigation by Air NZ into the incident was “full and fair”.
Further discussions between Air NZ and Ms Kensington are due to take place this month regarding costs in the case and possible reinstatement of her employment.
It is good that Gina Kensington has won this case. It is still of concern that the ERA decided to force her to hand over her bank and Facebook information rather than decide the case on the evidence that Air New Zealand had when they dismissed her. It seems that Air NZ has taken a punt on this one in deciding to dismiss. There wasn’t really enough evidence but it didn’t look right so they have gone with their gut. It is hard for large employer like Air NZ. Like the army, they have to come down hard on any perceived bending of the rules or else everyone will be doing it.