| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 59 |
| Hearing date | 15 Feb 2012 |
| Determination date | 17 February 2012 |
| Member | R Arthur |
| Representation | M Broadbelt, W Silver ; no appearance |
| Location | Whangarei |
| Parties | Whalley v Takou Were-Te-Mokai Landcare Charitable Trust |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondent – No appearance for respondent – Applicant claimed dismissed following text exchange with Trust Manager (“R”) – Applicant claimed text exchange ended with abusive text messages sent by R – Applicant attended work following day – Applicant claimed received text message saying would not be paid unless provided timesheets – Applicant claimed later left timesheets at R’s home – Respondent claimed applicant dismissed because disobeyed instruction to attend training programme, performed unauthorised work and failed to supply timesheets – Authority found content of text messages sent by R to applicant amounted to sending away – Found applicant reasonably understood phrases used to mean R had ended employment relationship – Found applicant attended work following day out of responsibility to clear traps – Found insufficient evidence that applicant carried out unauthorised work – Found evidence did not suggest lack of diligence by applicant during employment – Found unclear whether failure to provide timesheets was entirely applicant’s fault – Found R did not set up satisfactory means of receiving timesheets – Found doubt as to whether instruction reasonable to attend training – Applicant claimed had doubts about whether training valuable based on previous training – Found fair and reasonable employer should have addressed concerns instead of sending abusive text messages – Found fair and reasonable employer would have recognised applicant’s relative youth and inexperience and given applicant measured guidance – Dismissal unjustified – REMEDIES – One third contributory conduct – Found applicant made reasonable endeavours to mitigate loss - $5,737 reimbursement of lost wages appropriate – $2,000 compensation appropriate – COSTS – Length of investigation meeting not specified – Applicant sought $1,500 contribution to $3,945 total costs - $1,500 contribution to costs appropriate – Trainee Hapu Ranger |
| Result | Application granted ; Reimbursement of lost wages ($5,737.50) ; Contributory Conduct (33.3%) ; Compensation for humiliation etc ($3,000 reduced to $2,000) ; Costs in favour of applicant ($1,500) ; Disbursements in favour of applicant ($71.56) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s174;ERA Second Schedule cl12 |
| Cases Cited | Actors IUOW v Auckland Theatre Trust Inc (1989) ERNZ Sel Cas 247 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_59.pdf [pdf 41 KB] |