| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 179 |
| Determination date | 30 May 2012 |
| Member | R A Monaghan |
| Representation | P Teei ; J Douglas |
| Parties | Broughton v Portage Licensing Trust |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant claimed unjustifiably dismissed by respondent - Authority found reasonable for respondent to conclude applicant's conduct breached liquor and gambling laws and put respondent's liquor licence at risk - Found reasonable for respondent to conclude applicant's actions deeply impaired respondent's trust and confidence in applicant - Dismissal justified - Bar manager |
| Abstract | Applicant employed by respondent as bar manager. Applicant claimed unjustifiably dismissed by respondent. Applicant left bar briefly to pay bill. Respondent claimed applicant's absence caused respondent to breach obligations under liquor and gambling laws. Respondent claimed applicant's absence put respondent's liquor licence at risk. Applicant dismissed. Applicant claimed only left respondent's premises briefly, was obliged to leave bar to receive deliveries on other occasions and had arranged for bar to be watched. Applicant claimed actions not serious misconduct and contributed to by respondent's failure to provide applicant with break.;AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Brevity of applicant's absence from respondent's premises only one factor to consider. Reasonable for respondent to differentiate between leaving bar area to receive deliveries and leaving respondent's premises altogether for personal reasons. Reasonable for respondent to conclude other employee did not have full view of bar and applicant's arrangement with other employee did not affect applicant's obligation to remain. Applicant did not raise respondent's failure to provide break and respondent entitled to rely on explanation given at time. Even if applicant entitled to break at time applicant left respondent's premises, respondent not under obligation to allow applicant to leave premises. Respondent believed on reasonable grounds applicant's conduct amounted to failure to comply with liquor and gambling laws and put respondent's liquor licence at risk. Although applicant's dismissal could seem harsh, applicant's knowledge of obligations under liquor laws and respondent's obligations as community body meant reasonable for respondent to conclude that respondent's trust and confidence in applicant impaired. Dismissal justified. |
| Result | Application dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA Part 6D;ERA s103A;Gambling Act 2003;Gambling Act 2003 s58;Gambling (Harm Prevention and Minimisation) Regulations 2004 reg12(1)(a);Sale of Liquor Act 1989;Sale of Liquor Act 1989 s115;Sale of Liquor Act 1989 s115(1);Sale of Liquor Act 1989 s115(2);Sale of Liquor Act 1989 s115(3);Sale of Liquor Act 1989 s132;Sale of Liquor Act 1989 s135 |
| Cases Cited | Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;Police v Tillermans Restaurant Ltd [2001] DCR 984;Reynolds v Irish Bar Company Ltd unreported, NZLLA, 29 June 2005, PH473/2005;Swann v ACI NZ Ltd (1990) ERNZ Sel Cas 909;Thornley v Waitakere Licensing Trust unreported, NZLLA, 3 August 2009, PH828/2009;Whittle v O'Hagans Ltd unreported, NZLLA, 20 June 2008, PH845/2008 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Auckland_179.pdf [pdf 146 KB] |