| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 258 |
| Hearing date | 26 Jun 2012 |
| Determination date | 27 July 2012 |
| Member | E Robinson |
| Representation | Gallagher ; R Upton |
| Location | Auckland |
| Parties | Gallagher v Auckland Packaging Company Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by respondent’s suspension of applicant and unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for wilfully disobeying lawful instruction to remain at workplace – Authority found applicant aware during first meeting actions may result in disciplinary action, made aware of terms of employment agreement (“EA”) and provided opportunity to provide explanation – Found respondent entitled to rely on contractual provision for suspension – No unjustified disadvantage – Found instruction applicant to remain at work lawful and reasonable – Found applicant remained clear in intention to leave early for personal reasons and deliberately flouted terms of EA – Found reasonable for respondent to conclude dismissal appropriate given applicant’s indication had little awareness of seriousness of actions, regard for workplace rules or respect for management – Found respondent conducted investigation, raised concerns with applicant by referring to EA and possible consequences, provided opportunity for applicant to comment and considered applicant’s explanations – Dismissal justified – Machine operator |
| Abstract | Applicant employed by respondent as machine operator. Applicant claimed unjustifiably disadvantaged by respondent’s suspension of applicant and unjustifiably dismissed by respondent. Applicant travelled to and from work by obtaining lift by fellow employee and respondent allowed applicant to vary contractual work hours if schedule permitted. Applicant asked to leave work early to obtain lift with fellow employee but told by supervisor (“C”) urgent order needed to be dispatched that afternoon and applicant required to remain until contractual finish time. Applicant claimed had made commitment to girlfriend and told team leader (“W”) would be leaving earlier. Applicant told by W and other supervisor applicant required to remain but applicant stated ‘did not care’. After applicant spoken to by C, applicant stated did not care if received warning. Applicant left work early. Next day applicant called to meeting with respondent’s operations manager (“D”). Applicant declined opportunity to have representation and accepted actions set bad example but claimed applicant’s transport arrangements higher priority. D read applicant relevant parts of applicant’s employment agreement (“EA”) including clause stating leaving premises without authority considered serious misconduct. Applicant suspended. At subsequent meeting applicant declined opportunity to have representation. D claimed issuing warning in circumstances where applicant had shown no remorse would effectively condone applicant’s actions and send message to staff acceptable to disobey reasonable instruction. D claimed respondent had allowed applicant to vary contractual work hours previously and no flexibility shown by applicant on this occasion. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant aware during first meeting actions previous day may result in disciplinary action, made aware of terms of EA and provided opportunity to provide explanation. Respondent entitled to rely on contractual provision for suspension. No unjustified disadvantage. Instruction applicant to remain at work lawful and reasonable given urgent nature of order needing to be dispatched. Applicant’s failure to reciprocate respondent’s reasonableness regarding work hours breach of applicant’s good faith duty. Applicant aware of urgent nature of order dispatch but remained clear in intention to leave early for personal reasons and deliberately flouted terms of EA. Applicant aware when left workplace disciplinary action might follow, aware of provisions in EA and subsequently indicated aware dismissal might be outcome but failed to show remorse or apologise. Reasonable for respondent to conclude dismissal appropriate given applicant’s indication had little awareness of seriousness of actions, regard for workplace rules or respect for management. Respondent entitled to conclude warning applicant would send message to other employees acceptable to disregard contractual work hours. D conducted investigation, raised concerns with applicant by referring to EA and possible consequences, provided opportunity for applicant to comment and considered applicant’s explanations. Dismissal justified. |
| Result | Applications dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1);ERA s4(1A)(b);ERA s103A |
| Cases Cited | NZ Printing and Related Trades IUOW v Clark and Matheson Ltd [1984] ACJ 283;NZ (with exceptions) Food Processing etc IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Cas 582;Richardson v Board of Governors of Wesley College [1999] 2 ERNZ 199;Sky Network Television Ltd v Duncan [1998] 3 ERNZ 917;Tawhiwhirangi v Attorney-General in respect of Chief Executive, Department of Justice [1993] 2 ERNZ 546 |
| Number of Pages | 17 |
| PDF File Link: | 2012_NZERA_Auckland_258.pdf [pdf 233 KB] |