| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 58 |
| Hearing date | 1 Sep 2011 |
| Determination date | 17 February 2012 |
| Member | K J Anderson |
| Representation | B Rimmer ; D McIlraith |
| Location | Hamilton |
| Parties | Waho v P J & P M Vela Ltd t/a Pencarrow Stud |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent thoroughbred horse breeder - Respondent’s manager (“C”) claimed imperative that weed spraying not carried out on windy days to avoid chemical spray drift dangerous to people and horses – Parties agreed applicant should tidy parade area but applicant should not do weed spraying as windy that day – Head gardener (“A”) tried unsuccessfully to contact applicant to “double-check” applicant not spraying – A claimed next day applicant said had not received message about spraying but only “did one knapsack anyway” – C claimed left workplace later that morning because of heatstroke and absent next two days – Investigation commenced – Respondent told applicant meeting to discuss repeated absences, applicant’s failure to follow instructions about spraying and possibility of redundancy – Applicant dismissed due to failure to comply with lawful instruction – Respondent claimed at time of spraying incident applicant already subject to final warning for failure to comply with fair and reasonable instruction – Final warning stated if applicant again failed to comply with instruction failure would almost certainly result in dismissal - Authority accepted C and A’s evidence that applicant said had sprayed one knapsack of spray although applicant later denied said this – C claimed applicant would have completed spraying while windy – Authority found more probable than not applicant did receive A’s messages about not spraying but could have completed spraying before received messages – Authority accepted applicant initially admitted to using one knapsack of spray – Applicant acknowledged aware should not spray in windy conditions - Found applicant had received series of warnings and at time of dismissal subject to final warning - Found fair and reasonable employer in all circumstances would have concluded applicant’s conduct destructive of respondent’s confidence and trust in applicant – Dismissal justified - Gardener |
| Result | Application dismissed ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_58.pdf [pdf 48 KB] |