| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 119 |
| Hearing date | 1 May 2012 |
| Determination date | 19 June 2012 |
| Member | D Appleton |
| Representation | H McKinnon ; P Swarbrick |
| Location | Nelson |
| Parties | Costain v The Warehouse Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by respondents actions - Authority found respondent unjustifiably disadvantaged applicant by threatening performance review - REMEDIES - No contributory conduct - $5,000 compensation appropriate - UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant claimed unjustifiably dismissed - Found applicant's actions in granting discount to colleague and subsequent refusal to acknowledge wrongdoing serious misconduct - Dismissal justified - Duty manager |
| Abstract | Applicant employed by respondent as duty manager. Applicant claimed unjustifiably disadvantaged and unjustifiably dismissed by respondent. Applicant claimed informed respondent that applicant suffering from depression. In response, respondent informed applicant that applicant would be subject to performance review if applicant wished to continue working for respondent. Respondent denied conversation took place. Respondent claimed later on same day applicant gave discount to colleague prior to commencement of sale period against respondent's policy. On return from sick leave applicant advised by respondent of disciplinary meeting regarding discount incident. Applicant attended meeting and claimed applicant's actions normal practice and rules unclear. Respondent told applicant considered applicant's conduct serious misconduct. Applicant dismissed. Applicant claimed that staff had committed similar acts of misconduct in past and not dismissed. Respondent claimed incidents in question were different in nature and took placed under different management Applicant claimed did not understand which discount applicant was being disciplined for granting..;AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - Conversation about applicant's depression and subsequent threat of performance review took place. Performance review had potential to result in dismissal. Applicant unjustifiably disadvantaged by respondent's threat of performance review. REMEDIES - No contributory conduct. $5,000 compensation appropriate. UNJUSTIFIED DISMISSAL: Applicant's actions in granting discount to colleague and subsequent refusal to acknowledge wrongdoing serious misconduct. Applicant understood nature of respondent's allegations at disciplinary meeting. Disciplinary process fair. No disparity in treatment between applicant and other employees. Dismissal justified. |
| Result | Application granted (unjustified disadvantage); Compensation for humiliation etc ($5,000); Application dismissed (unjustified dismissal); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s 4(1);ERA s4(1A)(c);ERA s103A;ERA s104;ERA s124;Legal Services Act 2001 s45(2) |
| Cases Cited | Airline Stewards and Hostesses of NZ IUOW v Air NZ Ltd (1985) ERNZ Sel Cas 156;Buchanan v Chief Executive of the Department of Inland Revenue , [2006] ERNZ 512;Samu v Air New Zealand Ltd [1995] 1 ERNZ 636;Wadley v Salon D'Orsay Ltd [1998] ERNZ 369 |
| Number of Pages | 21 |
| PDF File Link: | 2012_NZERA_Christchurch_119.pdf [pdf 194 KB] |