| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 53 |
| Hearing date | 6 Mar 2012 |
| Determination date | 27 March 2012 |
| Member | P Cheyne |
| Representation | L Ryder ; RD Webster |
| Location | Christchurch |
| Parties | Booth v Hirequip Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent – Respondent regional sales manager (“Y”) believed applicant abused flexibility to deal with personal matter as took too much unauthorised time off work – Y conducted covert surveillance on applicant – Applicant completed call sheet – Y identified multiple discrepancies between applicant’s call sheet and own surveillance record – Applicant attended meeting to explain discrepancies – Applicant only explained that one visit recorded on call sheet had occurred on previous day – Applicant attended formal disciplinary meeting – Applicant claimed discrepancies on call sheet were honest mistakes – Respondent issued applicant written warning – Respondent stated applicant’s recent absences from work justified surveillance, Y had not received honest answers during first meeting and applicant guilty of false time keeping amounting to dishonesty – Authority found applicant disadvantaged by respondent’s actions as warning made applicant’s employment less secure – Found respondent did not comply with contractually binding disciplinary procedure – Found Y had alternative to conducting covert surveillance in that could have inquired to applicant’s whereabouts and checked with various respondent employees that applicant had assisted – Found significant element of pre-determination on Y’s part as from outset Y thought applicant had been dishonest on call sheet because information differed from Y’s observations – Found Y should have confronted applicant from outset with knowledge that had been under observation – Found merit in submission that respondent failed to ensure all relevant facts had been obtained and all reasonable explanations for alleged misconduct had been canvassed – Found merit in submission that respondent failed to provide all evidence relied on to support Y’s decision – Found respondent’s breaches resulted in substantial unfairness to applicant – Disadvantage unjustified – REMEDIES – No contributory conduct – Found practicable and reasonable to order withdrawal of written warning – Found respondent had to bear responsibility for distress suffered by applicant – $7,500 compensation appropriate – BREACH OF CONTRACT – Applicant claimed respondent’s breaches constituted breach of contract which entitled applicant to award of special damages being cost of legal representation outside of proceedings – Found matter was personal grievance claim and all costs of representation properly dealt with in line with Authority’s statutory costs jurisdiction – Account Manager |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($7,500) ; Application dismissed (breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3)(a) |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] NZEmpC 160;BW Bellis Ltd (t/a The Coachman Inn) v Canterbury Hotel etc IUOW (1985) ERNZ Sel Cas 142;Moxon v Pathways Health Ltd t/a Pathways [2011] NZERA Christchurch 151;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659;X v Secretary for Justice [2011] NZERA Christchurch 177 |
| Number of Pages | 14 |
| PDF File Link: | 2012_NZERA_Christchurch_53.pdf [pdf 67 KB] |