| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 218 |
| Hearing date | 16 Mar 2012 - 26 Apr 2012 (2 days) |
| Determination date | 27 June 2012 |
| Member | R Larmer |
| Representation | M Nutsford ; M Coker |
| Location | Hamilton |
| Parties | Jarvis v Candyland Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Abandonment – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant did not abandon employment – Found fair and reasonable employer would not have concluded applicant’s actions amounted to serious misconduct - Dismissal unjustified – REMEDIES - 25 per cent contributory conduct - Respondent to pay applicant $3,748 reimbursement of lost wages - $3,750 compensation appropriate – COSTS - One and half day investigation meeting - Respondent to pay applicant $5,250 contribution towards costs - Sales Assistant |
| Abstract | Applicant employed as sales assistant. Applicant permanent employee and worked when required by respondent. Applicant left work hour early and claimed did not feel well enough to stay until end of shift. Respondent director (“C”) claimed applicant abandoned employment that day and stopped performing duties three hours before shift ended. C claimed removed applicant from roster after incident as applicant had abandoned employment and had lost trust and confidence in applicant. Respondent claimed applicant had previously caused customer complaints and had undermined C. Respondent told applicant employment ended unless applicant gave C and other respondent employees written apology for conduct. Applicant unsuccessfully attempted to contact C about employment. C later agreed to pay applicant holiday pay if applicant resigned.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent, not C, applicant’s employer. Applicant did not abandon employment as no written employment agreement between parties with abandonment clause, applicant early departure impliedly authorised and applicant contacted respondent about subsequent work. Applicant dismissed when unilaterally taken off respondent’s roster. Respondent did not disclose to applicant all information relied on when made dismissal decision and applicant had no opportunity to respond to allegations. Fair and reasonable employer would not have concluded applicant’s actions amounted to serious misconduct. Dismissal unjustified. REMEDIES: 25 per cent contributory conduct. Respondent to pay applicant $3,748 reimbursement of lost wages. $3,750 compensation appropriate.;COSTS: One and half day investigation meeting. Respondent to pay applicant $5,250 contribution towards costs. |
| Result | Application granted ; Contributory conduct (25%) ; Reimbursement of lost wages ($3,748.28) ; Compensation for humiliation etc ($3,750) ; Costs in favour of applicant ($5,250) ; Disbursements in favour of applicant ($71.56) |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A)(c);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s65;ERA s103A;ERA s103A(3);ERA s124;ERA s128;ERA s128(2) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELR 40 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Auckland_218.pdf [pdf 208 KB] |