| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 198 |
| Hearing date | 13 Aug 2012 |
| Determination date | 14 September 2012 |
| Member | C Hickey |
| Representation | M Edwards (in person) ; A Douglas |
| Location | Christchurch |
| Parties | Edwards v Blakely Construction Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by respondent’s failure to investigate incident and unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for failing to follow lawful and reasonable instruction, refusing to perform assigned work and leaving worksite without authority – Authority found respondent should have investigated applicant’s complaint about being ‘set up’ by colleagues in earlier incident but any disadvantage overshadowed by applicant’s dismissal – No unjustified disadvantage – Found fair and reasonable employer could not dismiss employee for action or inaction where employee did not understand instruction – Found applicant did not refuse to perform assigned work – Found element of assumption in applicant’s conclusion able to leave worksite with other employees and fair and reasonable employer could have concluded applicant’s behaviour serious misconduct – Found respondent did not investigate allegations sufficiently, did not give applicant details of occasions when applicant allegedly did not follow instructions and did not consider applicant’s explanations genuinely – Dismissal unjustified – REMEDIES – 20 per cent contributory conduct – Respondent to pay applicant $4,200 reimbursement of lost wages – $84 compensation for loss of KiwiSaver benefit appropriate – Interest payable – $4,000 compensation appropriate – Labourer |
| Abstract | Applicant employed by respondent as labourer. Applicant claimed unjustifiably disadvantaged by respondent’s failure to investigate incident and unjustifiably dismissed by respondent. Applicant claimed ‘set up’ by other employees telling applicant falsely respondent’s owner wanted applicant to approach digger being driven by owner to collect piece of copper pipe (“set up incident”). Two days later applicant walked into room where foreman (“B”) and fellow employee (“M”) cutting out floor. B claimed told applicant to get off floor multiple times but instruction ignored by applicant who approached B and swore at B. Applicant claimed did not understand B and swore at by B. Later in day foreman (“H”) told B and M could go home. Applicant claimed heard H say would “see you guys tomorrow” and assumed able to leave also. Applicant left worksite. H and B claimed H identified B and M by name. Respondent claimed applicant refused to perform assigned work and left worksite without authority. Respondent’s operations manager (“P”) commenced disciplinary investigation. B and H asked to put concerns in writing but statements not available to P before disciplinary meeting. At disciplinary meeting applicant raised set up incident but P did not investigate because not considered relevant. P alleged applicant had failed to follow foreman’s instructions on number of occasions. Applicant dismissed at conclusion of meeting.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent should have investigated applicant’s complaint about being ‘set up’ by colleagues but any disadvantage overshadowed by applicant’s dismissal. No unjustified disadvantage. B’s instruction to applicant to get off floor lawful and reasonable but B did not tell applicant floor unsafe or what B wanted applicant to do. Fair and reasonable employer could not dismiss employee for action or inaction where employee did not understand instruction. Applicant did not refuse to perform assigned work as particular task had not been assigned to applicant when left worksite. General worksite practice no employees could leave without direction or knowledge of foreman. Reasonable for P to conclude H had identified employees able to leave worksite by name and element of assumption in applicant’s conclusion able to leave worksite with others. Fair and reasonable employer could have concluded applicant’s behaviour serious misconduct. Applicant unaware in advance disciplinary meeting could result in summary dismissal. P should have sought M’s views of incidents and waited for written statements from H and B before making decision. P did not give applicant details of occasions when applicant allegedly did not follow instructions, did not consider applicant’s explanations genuinely and had pre-determined view applicant had committed serious misconduct and should be dismissed. Dismissal unjustified. REMEDIES: 20 per cent contributory conduct. Respondent to pay applicant $4,200 reimbursement of lost wages. $84 compensation for loss of KiwiSaver benefit appropriate. Interest payable. $4,000 compensation appropriate. |
| Result | Application granted (unjustified dismissal); Contributory conduct (20%); Reimbursement of lost wages ($4,200); Compensation for loss of benefit ($84)(KiwiSaver contribution); Interest (5%); Compensation for humiliation etc ($4,000); Disbursements in favour of applicant ($71.56)(filing fee); Application dismissed (unjustified disadvantage); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s124;ERA s128(2);ERA Second Schedule cl11;Judicature Act 1908 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40;Sloggett v Taranaki Health Care Ltd [1995] 1 ERNZ 553 |
| Number of Pages | 19 |
| PDF File Link: | 2012_NZERA_Christchurch_198.pdf [pdf 305 KB] |