| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 112 |
| Hearing date | 16 Feb 2012 - 17 Feb 2012 |
| Determination date | 29 March 2012 |
| Member | R Larmer |
| Representation | A Hammond, D Foster ; G Service, J Hardacre |
| Location | Whangarei |
| Parties | Robb v Transfield Services (New Zealand) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed actions justified as applicant breached house rules by continually stealing diesel from excavators over nine month period – Respondent monitored fuel consumption of excavators operated by applicant as noticed difference in fuel usage between operators – Applicant asked to attend disciplinary meeting – Applicant and respondent branch manager (“H”) disputed whether applicant initiated proposal to attend meeting on same day as given notice to attend – Authority preferred H’s evidence that applicant initiated proposal – Found H attempted to discourage applicant from attending meeting on same say but applicant did not fully understand seriousness of issues because H had not disclosed sufficient information – H informed applicant that whatever excavator applicant had been using the fuel usage was two or three times what it was when same exactor used by another operator – H told applicant respondent believed applicant stealing diesel – Applicant claimed did not know what to say in response to H as in shock over allegation – Applicant claimed distracted by need to leave work early to attend funeral – H adjourned meeting and informed respondent regional manager (“M”) of intention to dismiss applicant – H dismissed applicant on basis applicant had no explanation for excessive amount of diesel used – Found respondent should have set out specific disciplinary allegations along with supporting evidence in initial disciplinary letter to applicant – Found applicant effectively deprived of genuine opportunity to consider and respond to allegation – Found respondent should have advised applicant of prospect of dismissal if allegation proven – Found respondent should have been sensitive to fact applicant due to attend funeral – Found respondent did not put specific concerns to applicant in clear manner – Found respondent breached good faith obligations – Dismissal unjustified – REMEDIES – Applicant presented numerous possible explanations to explain fuel differential – Found discrepancies not satisfactorily explained by applicant – Found applicant significantly contributed to grievance – Found due to contribution applicant not entitled to lost remuneration – Applicant claimed placed under considerable stress and financial pressure due to dismissal – Found respondent acted in haste without any sensitivity to applicant’s personal situation – Found applicant’s allegation that had been blacklisted in industry due to respondent had some merit – $5,000 compensation appropriate – Excavator Operator |
| Result | Application granted ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s103A |
| Cases Cited | Affco New Zealand Ltd v Nepia unreported, Shaw J, 28 September 2007, WC25/07;Airline Stewards and Hostesses of New Zealand IUOW v Air New Zealand Ltd [1990] 3 NZILR 584;Air New Zealand Ltd v Hudson [2006] ERNZ 415;Allen v Transpacific Industries Group Ltd (t/a Medismart Ltd") (2009) 6 NZELR 530;Hardie v Round (2008) 8 NZELC 99,317;Honda New Zealand Ltd v New Zealand Boilermakers Union (1990) ERNZ Sel Cas 855;Madden v New Zealand Railways Corporation [1991] 2 ERNZ 690;Nelson Air Ltd v New Zealand Airline Pilots Association [1994] 2 ERNZ 665;New Zealand (with exceptions) Food Processing IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Cas 582;Rooney Earthmoving Ltd v McTague [2009] ERNZ 240;Vice-Chancellor of Massey University v Wrigley [2010] NZEmpC 52;X v Auckland District Health Board [2007] ERNZ 66" |
| Number of Pages | 22 |
| PDF File Link: | 2012_NZERA_Auckland_112.pdf [pdf 102 KB] |