| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 4 |
| Hearing date | 9 Aug 2011 - 25 Aug 2011 (2 days) |
| Determination date | 12 January 2012 |
| Member | P Cheyne |
| Representation | P Cranney ; P Zwart |
| Location | Christchurch |
| Parties | Thomas v AsureQuality Ltd |
| Summary | PRACTICE AND PROCEDURE – Quantum of Remedies – Authority previously found applicant unjustifiably dismissed – 20 percent contributory conduct – Authority found applicant overreacted in leaving plant without permission following incident involving careless inspection of carcass – Found applicant’s careless inspection of carcass contributed in blameworthy manner to circumstances giving rise to grievance – Applicant sought reinstatement – Found presumption against retrospective effect of enactments – Found new s125 Employment Relations Act 2000 (“ERA”) enacted – Found nothing in amending statute to rebut presumption against retrospectivity – Found applicant’s personal grievance arose and proceedings lodged prior to amendment – Respondent claimed s125 ERA solely related to obligations or duties of Authority – Found Authority had duty prior to amendment – Found no reason why time required for Authority to meet duty to resolve employment relationship problem should be given any legal effect – Found repealed s125 ERA continued to have effect – Found at time of incident leading to dismissal, applicant subject to final warning which included performance improvement plan (“PIP”) – Found warning resulted from complaints by several work colleagues about applicant’s conduct – Found nothing in PIP to support contention would not be practicable to reinstate applicant – Found evidence from two colleagues that work environment better since applicant’s dismissal – Found significant unresolved problem between applicant and colleagues which affected interactions outside work – Found PIP did not accurately convey true depth of animosity towards applicant – Found failure to work cooperatively with colleagues would cause delays – Found reinstatement impracticable – Reinstatement declined – Respondent claimed remedies should be reduced as result of applicant’s alleged out of work conduct affecting colleague (“D”) – Authority declined to give any credence to D’s unsworn statement – Found applicant attempted to mitigate loss – Found applicant entitled to three months’ remuneration less earnings during that time and contributory conduct – Applicant claimed suffered significant effects from losing career – $12,800 compensation appropriate – Meat Inspector |
| Result | Quantum specified ; Contributory Conduct (20%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($16,000 reduced to $12,800) ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s101(c);ERA s102;ERA s114;ERA s124;ERA s125;ERA s158;Commerce Act 1986 s47;Employment Relations Amendment Act 2010 s14;Interpretation Act 1999 s4;Interpretation Act 1999 s7;Interpretation Act 1999 s17;Interpretation Act 1999 s18;Interpretation Act 1999 s18(2) |
| Cases Cited | Art Deco Society (Auckland) Inc v Auckland City Council [2006] NZRMA 49;Behan-Kitto v NZ Post [2011] NZERA Auckland 182;Foodstuffs (Auckland) Limited v Commerce Commission [2002] 1 NZLR 353;Kernohan v Asure New Zealand Limited [2004] 2 ERNZ 472;Khan v Oracle New Zealand Limited [2011] NZERA Auckland 177;Lamb v Burnside Dairy Farmers 2008 Ltd [2011] NZERA Christchurch 53;Marks v University of Auckland [2011] NZERA Auckland 160;McDonald v Slinkskins Tannery Limited [2011] NZERA Christchurch 70;NZEI v BOT of Auckland Normal Intermediate School [1994] 2 ERNZ 414;Salt v Fell [2008] ERNZ 155;Smith v Air2There.Com (2008) Limited [2011] NZERA Wellington 62 |
| Number of Pages | 15 |
| PDF File Link: | 2012_NZERA_Christchurch_4.pdf [pdf 74 KB] |