| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 119 |
| Hearing date | 12 Oct 2011 |
| Determination date | 10 April 2012 |
| Member | K J Anderson |
| Representation | M Rush ; R Connell |
| Location | Hamilton |
| Parties | Miller v Cambridge Painters (2008) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent offered painting job at customer (“L”) premises – L told respondent director (“S”) did not want applicant on premises as applicant had been seen reading newspaper, using cell phone and used foul language when working on previous job at L – S told applicant could not work at L and arranged for applicant to work at another site – Authority found S did not discuss L’s request in front of other employees – Applicant completing job for customer when had disagreement with co-worker (“B”) – S claimed overheard applicant making offensive remarks about B’s daughter and B visibly upset – Applicant denied S gave applicant warning – B claimed not offended by applicant’s remark – S claimed applicant bribed B before B gave evidence – Customer (“F”) claimed B had completed job at F’s workplace and B mentioned applicant had made derogatory and racist remark about B’s daughter – Witness claimed B upset by applicant’s comment about B’s daughter – Found S entitled to conclude applicant’s comment inappropriate and amounted to serious misconduct – Applicant dismissed – S claimed took applicant aside and gave applicant dismissal letter – Applicant claimed humiliated by dismissal in front of co-workers - Found applicant’s conflicting evidence about dismissal undermined applicant’s credibility – S denied told applicant not required to give reasons for dismissal and claimed told applicant dismissed because of applicant’s comments to B – Applicant claimed respondent failed to investigate matter before applicant dismissed and not given opportunity to respond to allegations – Found respondent failed to follow basic procedural fairness requirements and applicant’s dismissal not action of fair and reasonable employer – Dismissal unjustified – REMEDIES – 50 per cent contributory conduct – Found applicant’s evidence about attempts to mitigate loss unreliable – $960 reimbursement of wages - Found no evidence of applicant’s hurt and humiliation and compensation award inappropriate - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages for notice period and arrears of holiday pay - S claimed applicant failed to work out notice period and claimed wages for periods did not work - Found unable to conclude whether applicant owed wages for notice period or arrears of holiday pay – No arrears of wages or holiday pay - Painter |
| Result | Application granted (unjustified dismissal); Contributory conduct (50%) ; Reimbursement of lost wages ($960) ; Application dismissed (arrears of wages and holiday pay) ; Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s123;ERA s123(1);ERA s124;ERA s128;ERA s128(2);Employment Relations Amendment Act 2010 |
| Cases Cited | New Zealand (with exceptions) Food Processing IUOW v Unilever New Zealand Ltd [1990] ERNZ Sel Cas 582 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Auckland_119.pdf [pdf 58 KB] |