| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 181 |
| Hearing date | 27 Jul 2012 |
| Determination date | 27 August 2012 |
| Member | D Appleton |
| Representation | R Murphy ; A Schirnack |
| Location | Christchurch |
| Parties | Houghton v Stray Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent – Respondent sought penalty against respondent for breach of employment agreement - Authority found applicant’s dismissal procedurally fair - Found applicant’s email to respondent manager (H") not serious misconduct on own although rude and disrespectful but, combined with repeated swearing and abuse directed at H, applicant’s conduct amounted to serious misconduct - Dismissal justified - COUNTER CLAIM – PENALTY – Found applicant deliberately breached duties owed respondent - Cumulative $1,000 penalty appropriate - Bus Driver" |
| Abstract | Applicant employed as bus driver. Applicant claimed unjustifiably dismissed by respondent. Respondent denied applicant unjustifiably dismissed and sought penalties against applicant for breach of employment agreement. Respondent claimed applicant sent text messages from respondent phone likely to be harmful to respondent’s reputation after respondent told applicant during investigation not to take any action that could bring respondent into disrepute. Applicant’s duties included driving customers to tourist spots and provided accommodation. Applicant took customers to hotel (“X”) at end of tour and applicant also spent night at hotel. Applicant previously had concerns about quality of X’s food. Applicant claimed spoke to respondent manager (“H”) about concerns and H told applicant to call H next day to discuss if food still below standard. Applicant claimed customers complained about quality of food served at X. Applicant claimed embarrassed about food so personally paid for customers’ food at alternative restaurant. Applicant received further complaints from customers about quality of accommodation at X. Applicant claimed tired and stressed and sent H email with repeated swearing stating would never take customers to X again. H claimed applicant’s email abusive and unacceptable. H claimed received call from applicant and applicant abusive and swore repeatedly at H. H requested applicant attend disciplinary meeting and claimed received further abuse from applicant. Applicant accepted swore and had heated discussions with H but claimed could not recall exactly what had said. Applicant later apologised to H. Applicant suspended until meeting. Respondent discussed customer complaints about applicant’s conduct at meeting. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of all information identifying X as X not party to proceedings. Applicant given full opportunity to explain conduct at meeting. Customers’ complaints were not discussed in detail during meeting however respondent conceded applicant would have been dismissed for email and phone calls alone. Dismissal procedurally fair. Sustained swearing at manager could constitute serious misconduct. Applicant’s email not serious misconduct on own although rude and disrespectful but, combined with repeated swearing abuse directed at H, applicant’s conduct amounted to serious misconduct. Whether dismissal appropriate response finely balanced question but in all circumstances respondent acted as fair and reasonable employer. Dismissal justified.;COUNTER CLAIM – PENALTY: Applicant deliberately ignored respondent’s instructions when sent text messages to respondent employees and respondent competitors. Respondent’s instruction reasonable. Applicant also owed respondent duty of trust and confidence. Applicant deliberately breached duties owed respondent. Cumulative $1,000 penalty appropriate. |
| Result | Application granted (counterclaim – penalty) ; Penalty ($1,000)(payable to respondent) ; Applicant dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s134 |
| Number of Pages | 15 |
| PDF File Link: | 2012_NZERA_Christchurch_181.pdf [pdf 273 KB] |