| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 124 |
| Hearing date | 28 Oct 2011 |
| Determination date | 21 June 2012 |
| Member | P Cheyne |
| Representation | T Twomey ; J Frampton |
| Location | Christchurch |
| Parties | O'Connell v Consortium Construction Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant not given details of allegation or opportunity to respond to allegation – Dismissal unjustified – REMEDIES – 50 per cent contributory conduct – Respondent to pay applicant $6,760 reimbursement of lost wages - $6,000 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – No arrears of wages and holiday pay – PENALTY – Applicant sought penalty for deduction from applicant’s pay without applicant’s consent – Found respondent breached employment agreement wilfully by making deduction without applicant’s consent - $1,000 penalty appropriate – Carpenter |
| Abstract | Applicant employed by respondent as carpenter. Applicant claimed unjustifiably dismissed by respondent. Applicant sought arrears of wages and holiday pay and penalty for deduction from applicant’s pay without applicant’s consent. Applicant’s colleagues claimed applicant smoking marijuana on construction site. Respondent claimed respondent’s manager (“W”) sought information from applicant’s colleagues. Applicant dismissed. Applicant denied using marijuana at work.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority noted delay in issuing determination due to Christchurch earthquake. W did not speak to applicant’s colleagues prior to dismissing applicant. Applicant not given details of allegation or opportunity to respond to allegation. Dismissal unjustified. REMEDIES: Applicant had taken marijuana to work, incorporated it carelessly into cigarette and smoked it briefly while working in high risk circumstances. 50 per cent contributory conduct. Respondent to pay applicant $6,760 reimbursement of lost wages. $6,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: No arrears of wages and holiday pay.;PENALTY: Deduction from applicant’s pay without applicant’s consent breached Wages Protection Act 1983 but claim for penalty under Wages Protection Act 1983 not bought until after investigation meeting. Respondent breached employment agreement wilfully by making deduction without applicant’s consent. $1,000 penalty appropriate. |
| Result | Applications granted (unjustified dismissal)(penalty); Contributory conduct (50%); Reimbursement of lost wages ($6,750); Compensation for humiliation etc ($6,000); Penalty ($1,000)(payable to applicant); Application dismissed (arrears of wages and holiday pay); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4(1A);ERA s4(1A)(c);ERA s128(2);ERA s130(2);ERA s134;ERA s136(2);Health and Safety in Employment Act 1992;Wages Protection Act 1983;Wages Protection Act 1983 s13 |
| Cases Cited | Jinkinson v Oceana Gold (NZ) Ltd (No 2) (2011) 9 NZELC 93,655 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Christchurch_124.pdf [pdf 143 KB] |