| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 206 |
| Determination date | 18 June 2012 |
| Member | R Arthur |
| Representation | M Kyriazopoulos ; P Elder |
| Parties | Retire v Southern Paprika Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by respondent’s decision to warn applicant and unjustifiably dismissed by respondent – Authority found respondent not able to rely on fellow employee’s (“H”) claim that H threatened by applicant when respondent should have known H’s testimony unreliable – Applicant unjustifiably disadvantaged by respondent’s decision to warn applicant – Found respondent’s instruction that applicant not attend meeting not reasonable as respondent required to consider applicant’s and fellow employee’s (“K”) interests – Found even if instruction reasonable, respondent could not conclude applicant’s actions serious misconduct as applicant had bona fide belief not required to give notice before attending meeting – Dismissal unjustified – REMEDIES – Application for reinstatement to be determined under amended s125 Employment Relations Act 2000 – Reinstatement ordered subject to conditions – One twelfth contributory conduct (reimbursement of lost wages) and 10 per cent contributory conduct (compensation for humiliation etc) – Respondent to pay applicant reimbursement of lost wages, parties to determine quantum - $4,500 compensation appropriate – COSTS – Two days investigation meeting – Applicant sought contribution towards costs – Respondent to pay applicant $3,500 contribution towards costs – Glasshouse worker |
| Abstract | Applicant employed by respondent as glasshouse worker. Applicant claimed unjustifiably disadvantaged by respondent’s decision to warn applicant and unjustifiably dismissed by respondent. Applicant sought contribution towards costs. Applicant and others approached fellow employee (“H”) to seek information about racist text messages H claimed on company phone. H claimed felt threatened by applicant and others. Respondent concluded H lied about text messages. Applicant warned for approaching H in aggressive and threatening manner. Six months later applicant arranged to drive fellow employee (“K”) to mediation meeting as union delegate and act as translator. Applicant told respondent would be attending meeting on day of meeting. Respondent claimed K did not need assistance and applicant required to give one week’s notice if taking leave. Respondent claimed no right for union delegate to attend to union matters unless expressly provided for in employment agreement. Respondent instructed applicant not to attend meeting. Applicant attended meeting. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent not able to rely on H’s claim that H threatened by applicant when respondent should have known H’s testimony unreliable. Applicant’s belief that respondent unwilling to investigate H’s claims meant nothing inherently wrong with applicant approaching H to attempt to establish whether any substance to rumours about racist text message. Applicant unjustifiably disadvantaged by respondent’s decision to warn applicant. Respondent’s instruction that applicant not attend meeting not reasonable as respondent required to consider applicant’s and K’s interests. Respondent should have verified that K unable to drive to and participate in mediation without assistance. Even if instruction reasonable, respondent could not conclude applicant’s actions serious misconduct as applicant had bona fide belief not required to give one week’s notice. Dismissal unjustified. REMEDIES: Applicant sought reinstatement. Respondent claimed applicant’s defiance of respondent’s instruction meant reinstatement not appropriate. Application for reinstatement to be determined under amended s125 Employment Relations Act 2000. No evidence applicant unable to work harmoniously with others. Reinstatement ordered subject to conditions. Applicant knew respondent disputed applicant’s right to attend off-site mediations and could have given respondent notice of absence. One twelfth contributory conduct (reimbursement of lost wages) and 10 per cent contributory conduct (compensation for humiliation etc). Respondent to pay applicant reimbursement of lost wages, parties to determine quantum. $4,500 compensation appropriate.;COSTS: Two days investigation meeting. Respondent to pay applicant $3,500 contribution towards costs. |
| Result | Applications granted; Reinstatement ordered; Contributory conduct (one twelfth – reimbursement of lost wages)(10 per cent – compensation for humiliation etc); Reimbursement of lost wages (parties to determine quantum); Compensation for humiliation etc ($4,500); Costs in favour of applicant ($3,500); Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ECA;ERA s3(a)(v);ERA s4;ERA s103A;ERA s103A(3);ERA s124;ERA s128;ERA s174 |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Aoraki Corp Ltd v McGavin [1998] 1 ERNZ 601; [1998] 3 NZLR 276;Ashton v Shoreline Hotel [1994] 1 ERNZ 421;Electrical Union Inc v Transfield Services (New Zealand) Ltd unreported, A Dumbleton, 12 October 2009, AA360/09;Northern Hotel etc IUOW v Rotorua Returned Services Assoc (Inc) (1989) ERNZ Sel Cas 535;New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1992] 3 ERNZ 243;New Zealand (with exceptions) Shipwrights and Boatbuilders, Moulders, Coachworkers, Boilermakers, Pulp and Paper Workers and Optical Technicians Union v Honda New Zealand Ltd [1989] 3 NZILR 791;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808;Sky Network Television Ltd v Duncan [1998] 1 ERNZ 354;Sky Network Television Ltd v Duncan [1998] 3 ERNZ 917;Toleafoa v Vodafone New Zealand Ltd [2011] NZERA Auckland 488;Yukich v Carter Holt Harvey Ltd [2004] 1 ERNZ 78 |
| Number of Pages | 22 |
| PDF File Link: | 2012_NZERA_Auckland_206.pdf [pdf 208 KB] |