| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 121 |
| Hearing date | 15 May 2012 |
| Determination date | 25 June 2012 |
| Member | D Appleton |
| Representation | G Burness ; J Brandts-Giesen |
| Location | Christchurch |
| Parties | Kentish v D C M Roofing Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged by respondent’s failure to pay ACC compensation on time, give ACC correct information or provide employment agreement – Authority found fundamental flaws in respondent’s process before applicant dismissed - Dismissal unjustified – No unjustified disadvantage – REMEDIES - 50 per cent contributory conduct - Respondent to pay applicant $3,686 reimbursement of lost wages - $1,500 compensation appropriate - Roofer and Chimney Repairer |
| Abstract | Applicant employed as roofer and chimney repairer. Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged by respondent’s failure to pay ACC compensation on time, give ACC correct information or provide employment agreement (“EA”). Applicant had injury at workplace and made ACC claim. Respondent began paying applicant compensation but Christchurch earthquake week later caused significant disruption. Earthquake and office manager's illness meant applicant paid ACC compensation week late. Applicant sent respondent managing director (“M”) several text messages asking when would receive payment. Applicant dismissed when returned to work. P claimed applicant dismissed as applicant had used respondent work vehicle without permission. P claimed “last straw” as had number of concerns about applicant’s performance. Respondent accepted did not follow fair process before dismissed applicant.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: No evidence applicant’s employment subject to 90 day trial period. Fundamental flaws in respondent’s process before applicant dismissed. Dismissal unjustified. Late payment of ACC compensation disadvantaged applicant but delay not due to unjustified action by respondent given circumstances. Noted respondent was small employer. No unjustified disadvantage. Parties agreed that respondent had paid applicant less ACC compensation than applicant entitled to but Authority did not have jurisdiction to enforce Accident Compensation Act 2001. Applicant had been given copy of EA. REMEDIES: 50 per cent contributory conduct. Respondent to pay applicant $3,686 reimbursement of lost wages. $1,500 compensation appropriate. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (50%) ; Reimbursement of lost wages ($3,686) ; Compensation for humiliation etc ($1,500) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Accident Compensation Act 2001 s97;Accident Compensation Act 2001 s97(2);Accident Compensation Act 2001 s97(3);ERA s67B;ERA s103;ERA s103A;ERA s124;ERA s128;ERA s128(3);Social Security Act 1964 s71 |
| Cases Cited | Blackmore v Honick Properties Ltd (2011) 9 NZELC 93,980;James & Co Ltd v Hughes [1995] 2 ERNZ 432;Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Christchurch_121.pdf [pdf 245 KB] |