| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 336 |
| Hearing date | 30 Aug 2012 - 31 Aug 2012 (2 days) |
| Determination date | 26 September 2012 |
| Member | R A Monaghan |
| Representation | M Harrison ; B Edwards |
| Location | Wellington |
| Parties | Schmidt v Pro-Dosa International Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Authority found respondent could not dismiss applicant for conduct raised at first meeting as applicant unaware meeting disciplinary - Found conduct discussed by parties at second meeting did not amount to serious misconduct on its own - Dismissal unjustified - REMEDIES - Some contributory conduct, reduction addressed by only awarding reimbursement of wages in lieu of notice applicant should have been given – Authority noted applicant would have been justifiably dismissed if applicant dismissed on notice therefore applicant only entitled to reimbursement of wages in lieu of notice - Respondent to pay applicant $2,446 reimbursement of lost wages - $1,000 compensation appropriate |
| Abstract | Applicant claimed unjustifiably dismissed by respondent. Respondent denied applicant dismissed when sent home and applicant later justifiably dismissed. Applicant’s manufacturing duties included filling and packing equine product. Respondent’s product paste dispensed from tube and tubes needed to filled within set timeframe. Applicant’s hours flexible. Respondent director (“M”) claimed significant change in applicant’s behaviour and performance deteriorated. M arranged for staff meetings to be held weekly. Applicant frequently late or failed to attend meetings and did not notify respondent whether would attend meeting. Customer (X") notified M of product quality concerns as product X had received had labels applied incorrectly and product on outside of tubes raised hygiene concerns. M claimed applicant had been grossly negligent and had not complied with respondent manual. M raised matters at meeting with applicant including lateness, filing product correctly and failing to label, box and wrap product in timely way. Applicant not told meeting disciplinary. Applicant claimed not required to attend weekly meetings and disputed whether product issues caused by applicant. M discovered applicant had left manufacturing room untidy and claimed manufacturing could not be carried out day before applicant scheduled to work. M decided applicant not required to work next day. M claimed applicant became abusive when told not to come to work and threatened to tell customers was problem with product. M told applicant to go home to calm down. Other employees confirmed applicant behaviour volatile and had found applicant intimidating. Respondent claimed applicant had left manufacturing room untidy aware manufacturing scheduled day before applicant at work. M claimed as had concerns about applicant’s behaviour asked applicant to return respondent keys and petrol card. M raised recent issues at parties’ second meeting and applicant denied made threat, claimed issues with consistency of product and manufacturing room not ready due to reasons outside applicant's control. Applicant dismissed effective immediately.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant admitted work had been “sloppy” at second meeting. Applicant not dismissed when respondent sent applicant home to calm down. Alternatively, at most respondent’s actions amounted to unjustified suspension and remedy not appropriate in circumstances. Open to M to conclude had been threatened by applicant. Authority did not accept applicant’s denials of alleged conduct. Applicant had demonstrated could not be trusted to work unsupervised. Respondent could not dismiss applicant for conduct raised at first meeting as applicant unaware meeting disciplinary. Conduct discussed by parties at second meeting did not amount to serious misconduct on its own. Dismissal unjustified. REMEDIES: Some contributory conduct, reduction addressed by only awarding reimbursement of wages in lieu of notice applicant should have been given. Noted applicant would have been justifiably dismissed if applicant dismissed on notice therefore applicant only entitled to reimbursement of wages in lieu of notice. Respondent to pay applicant $2,446 reimbursement of lost wages. $1,000 compensation appropriate." |
| Result | Application granted ; Contributory conduct (amount unspecified) ; Reimbursement of lost wages ($2,446.20) ; Compensation for humiliation etc ($1,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Actors Equity IUOW v Auckland Theatre Trust Inc (1989) ERNZ Sel Cas 247 ; [1998] 2 NZLR 154 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Auckland_336.pdf [pdf 243 KB] |