| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 2 |
| Hearing date | 7 Dec 2011 |
| Determination date | 05 January 2012 |
| Member | J Crichton |
| Representation | D Vinnicombe ; T Blackmore |
| Location | Auckland |
| Parties | Bannister v Top Notch Products Ltd t/a Thoroughbred Floats |
| Summary | UNJUSTIFIED DISMISSAL – Abandonment – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant failed to appear for work and abandoned employment - Applicant claimed was at work and had not been paid for day’s work as respondent’s time clock “erratic” – Applicant raised issue with respondent’s director (“B”) – B claimed applicant not paid as had not worked that day – Co-worker (“T”) claimed applicant at work that day and believed respondent’s time clock only operational three quarters of time – Co-worker (“B”) claimed applicant at work that day and respondent’s time clock occasionally did not work at all – Applicant claimed left workplace for afternoon two weeks later to visit Department of Labour office for advice after sought permission from foreman (“P”) – P denied gave permission and claimed had no authority to do so – Applicant arrived at work next day but excluded from workplace until respondent’s director (“S”) arrived – S dismissed applicant – Applicant claimed respondent’s actions created difficulties with applicant’s apprenticeship – Authority found applicant not employed by respondent as apprentice but respondent generously offered applicant opportunity to continue with apprenticeship - Found apprenticeship difficulties result of actions of third party, not respondent – Found respondent’s finding of abandonment of opportunity neither fair nor just – Found at worst applicant absent from work for afternoon without permission – Found respondent flexible in giving employees time off and applicant’s dismissal gross over-reaction - Found applicant not given opportunity to be heard and respondent failed to investigate circumstances – Found applicant’s decision predetermined and lacked any proper process - Dismissal unjustified – REMEDIES – No contributory conduct - $4,000 compensation appropriate - $5,000 reimbursement of lost wages – PENALTY – Parties did not have written employment agreement - Authority found not appropriate to levy penalty against respondent for failure to provide written employment agreement as not satisfied failure contributed to parties’ employment relationship problems |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($5,000) ; Compensation for humiliation etc ($4,000) ; Applicant dismissed (penalty) ; Costs reserved ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Cases Cited | Wellington, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95 |
| Number of Pages | 7 |
| PDF File Link: | 2012_NZERA_Auckland_2.pdf [pdf 33 KB] |