| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 127 |
| Hearing date | 28 Mar 2012 |
| Determination date | 13 April 2012 |
| Member | E Robinson |
| Representation | G Singh ; K Langton |
| Location | Auckland |
| Parties | Parker v Ceres Enterprises Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant abandoned employment – Parties agreed applicant would take four weeks’ annual leave – Respondent manager (“W”) claimed received number of emails from applicant during leave and expected applicant to return to work after leave ended – Applicant failed to return to work – Applicant claimed ill when arrived at airport to return home five days before applicant expected to return to work (“return date”) and hospital recommended applicant take seven days’ bed rest – Applicant claimed doctor later recommended applicant take further three weeks’ rest before returned home – W claimed unsuccessfully attempted to contact applicant – Applicant claimed two days after return date asked niece (“X”) to tell W unwell and unable to return to work – Applicant claimed while overseas only occasionally had access to internet and no phone available – W claimed received email from X that applicant unwell and would not be able to travel until week later – W claimed requested medical certificate but did not hear from applicant until four days later that applicant waitlisted for return flight home - Applicant failed to return to work and W did not hear from applicant until four days later that would be back in two weeks – W claimed were earlier flights available to applicant – W claimed during applicant’s absence discovered private email from applicant about family court case overseas – Investigation commenced – Applicant told W only chose to attend court hearings after discovered earlier return flight unavailable – Applicant gave respondent evidence including flight itinerary and doctors certificates – Respondent claimed documents showed inconsistencies in applicant’s evidence and applicant misled respondent about return date – Respondent told applicant would put allegations in writing and applicant could respond at meeting – Respondent claimed applicant had abandoned employment and applicant dismissed – Authority found although applicant had not communicated with respondent within three days while overseas had been consistent flow of communication while applicant absent – Found applicant did not abandon employment – Found respondent reasonably concluded applicant’s explanations for communication delay not credible – Found applicant’s claim unable to find flight home for 11 days not credible – Found respondent lost trust and confidence in applicant and dismissal for serious misconduct justifiable – Found however applicant not told could have representation and did not have opportunity to respond to allegations at meeting – Found respondent’s actions indicated decision predetermined – Dismissal unjustified – REMEDIES – 100 per cent contributory conduct - Found applicant did not act in good faith as misled respondent about absence – Found applicant had always intended to attend court hearing – Found inequitable to grant applicant remedies - Sales Assistant |
| Result | Application granted ; Contributory conduct (100%) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b);ERA s103A;ERA s157(3) |
| Cases Cited | E N Ramsbottom Ltd v Chambers [2000] 2 ERNZ 97;BP Oil New Zealand Ltd v Northern Distribution Union [1992] 3 ERNZ 483;New Zealand (with exceptions) Food Processing IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35 |
| Number of Pages | 18 |
| PDF File Link: | 2012_NZERA_Auckland_127.pdf [pdf 83 KB] |