| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 552 |
| Hearing date | 7 Nov 2011 |
| Determination date | 22 December 2011 |
| Member | R Larmer |
| Representation | K Nicholson ; P Swarbrick |
| Location | Auckland |
| Parties | Osborne v The Farmers' Trading Co Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant’s managerial responsibilities included ensuring direct reports adhered to respondent’s policies and procedures – Applicant took without authority gift customer did not want in breach of respondent’s gifts policy and instructed junior staff member to remove applicant’s name from relevant documentation – Applicant issued with final warning and instructed to read respondent’s relevant policies – Applicant moved to another of respondent’s stores (“N”) – While working at N applicant attempted to obtain staff discount on purchase and presented father’s eftpos card for payment – Applicant advised by another manager (“M”) applicant could not obtain staff discount if did not pay for items with own money – Applicant and father withdrew cash and applicant made purchase using cash and own eftpos card – M alleged applicant had been “stashing” discounted product so items not available for other customers to purchase – M claimed had seen applicant and father buy “armload of goods” and pick up four bottles of body spray concealed at counter – M claimed applicant’s father gave applicant eftpos card and requested that some item were placed in separate bag so applicant’s father could take them home – Applicant’s manager (“A”) commenced investigation – Respondent’s CCTV footage showed applicant had placed clearance stock on shop floor in respondent’s reserve area where respondent kept excess stock – Respondent’s staff discounts policy stated abuse of policy could result in dismissal – Applicant signed acknowledgement of updated staff policy that understood rules - Respondent claimed footage showed applicant was putting clearance items on hold in breach of respondent’s policy – Respondent claimed applicant had used personal discount card for father’s purchases and allowed acquaintances to use staff discount card without authorisation – Applicant claimed had used staff discount card to purchase goods for applicant’s partner with partner’s eftpos card – Applicant claimed although not a joint cardholder applicant and partner often used each other’s money as if it were their own – Applicant claimed put some stock in respondent’s reserve area as too busy to take break and purchase items – Applicant acknowledged aware could not put clearance items on hold but claimed as items in reserve room for less than hour did not breach respondent’s policy – Applicant claimed used father’s eftpos card to make purchase as gift to applicant had been put in father’s bank account – Applicant dismissed on notice – Applicant claimed final warning not legitimate as no other earlier warnings in place and when started at N was told by A was “new start” – Authority accepted A’s evidence had no authority to expunge applicant’s final warning – Found applicant did not raise issues about validity of warning until almost 21 months after warning issued - Authority found respondent justified in issuing and relying on final warning issued before applicant began working at N – Found dismissal decision not predetermined and respondent followed fair and proper process – Respondent concluded applicant should have been aware purchases with partner’s card were inconsistent with respondent’s staff discount policy – Found respondent justified in concluding applicant had breached, and ought to have been aware of, respondent’s staff discount and holds policy – Found respondent justified in concluding dismissal was appropriate sanction – Dismissal justified – Department Manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | ERA s4;ERA s103A |
| Number of Pages | 24 |
| PDF File Link: | 2011_NZERA_Auckland_552.pdf [pdf 107 KB] |