| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 117 |
| Hearing date | 23 Mar 2012 |
| Determination date | 10 April 2012 |
| Member | E Robinson |
| Representation | S Tee ; A Ong |
| Location | Auckland |
| Parties | Massie v Ong t/a Pharmacy 72 |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant’s duties included serving customers and delivering prescriptions to customers – Applicant claimed parties did not discuss reimbursement of applicant’s petrol costs - Employee (“S”) claimed saw applicant acting suspiciously by till although did not see applicant taking money - Respondent director (“A”) accepted S’s allegations as S registered pharmacist – Respondent director (“N”) claimed did not tell applicant about allegation as would have made working relationship uncomfortable – Applicant had miscarriage and took five days’ sick leave – A met with applicant after returned to work for performance appraisal – Applicant believed meeting to discuss salary review – A raised performance issues with applicant including taking sick leave, not documenting purchases and claiming petrol expenses for customer deliveries – A did not discuss dishonesty allegations with applicant – Applicant dismissed - Applicant claimed felt extremely distressed and vulnerable after meeting and had previously received only positive feedback from respondent - Applicant claimed all sick leave approved by respondent – Applicant claimed respondent did not discuss purchases policy when employment commenced and applicant had always provided receipts – Parties did not have written employment agreement - N denied told applicant if applicant wished to have family unsure applicant was suitable for respondent and claimed only suggested applicant find less stressful employment – Parties agreed applicant not given opportunity to respond to allegations – Applicant claimed intended to work out notice but next day discovered another employee doing usual duties – Applicant claimed when tried to serve customers N immediately took over – Applicant claimed attempted unsuccessfully to discuss situation with N – Applicant claimed N said petrol expenses applicant had claimed for customer deliveries would be deducted from applicant’s final pay – Applicant claimed did not return to workplace as felt unable to continue – Authority found applicant’s dismissal fell far short of procedural fairness requirements – Found applicant not advised meeting disciplinary or given opportunity to respondent to allegations – Found dismissal decision predetermined – Found fair and reasonable employer would not have dismissed applicant when applicant still in fragile and vulnerable state after miscarriage – Found issues raised by respondent at meeting not serious misconduct, applicant not issued with warning previously and respondent failed to raise dishonesty allegation – Found not reasonable for respondent to rely on procedures had not explained to applicant – Found respondent failed to investigate dishonesty allegations and respondent’s acceptance of S’s allegations as S registered pharmacist beyond any form of natural justice – Dismissal unjustified – REMEDIES – No contributory conduct - $540 reimbursement of lost wages – Found dismissal caused applicant significant distress - $15,000 compensation appropriate - Pharmacy Technician |
| Result | Application granted ; Reimbursement of lost wages ($540) ; Compensation for humiliation etc ($15,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s124 |
| Cases Cited | Honda New Zealand Ltd v New Zealand Boilermakers Union [1991] 1 NZLR 392 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Auckland_117.pdf [pdf 63 KB] |