| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 350 |
| Hearing date | 21 Sep 2012 |
| Determination date | 09 October 2012 |
| Member | R Larmer |
| Representation | L Darroch ; T Gore |
| Location | Auckland |
| Parties | Pollock v The Hardware Cafe Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for theft – Authority found respondent did not check or retain receipts from day of incident and would have discovered no shortfall in total takings on day of incident if respondent had checked – Found respondent failed to obtain written statements from witnesses and misunderstood and miscommunicated what witnesses had seen and done – Found respondent did not investigate matter promptly, did not raise concerns with applicant fairly and failed to provide applicant with opportunity to respondent to allegation – Found respondent could not reasonably conclude applicant had stolen $15 – Dismissal unjustified – REMEDIES – Respondent to pay applicant $4,662 reimbursement of lost wages – 10 per cent contributory conduct - $5,400 compensation appropriate – Waiter |
| Abstract | Applicant employed by respondent as waiter. Applicant claimed unjustifiably dismissed by respondent. Applicant asked to meet with respondent’s owner (“G”) at table in view of patrons and other staff. G alleged two employees had seen applicant take money out of till and put in applicant’s pocket one week earlier. Applicant claimed shocked at unexpected allegation and unable to recall incident as day in question had been very busy. Applicant dismissed. Applicant remembered subsequently had been told by customer to keep $15 change, believed entitled to keep tip because given to applicant personally, and removed money from till.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent did not check or retain receipts from day of incident meaning could not corroborate or disprove applicant’s explanation and respondent would have discovered no shortfall in total takings on day of incident if respondent had checked. Respondent failed to obtain written statements from witnesses and G misunderstood and miscommunicated what witnesses had seen and done. Respondent failed to consider applicant made no attempt to conceal actions and failed to investigate concerns promptly on day of incident rather than raising matter one week later. Respondent did not raise concerns with applicant fairly as applicant had no advance notice of meeting, no notice meeting was to be disciplinary meeting concerning theft allegations and not given access to relevant information during meeting. No opportunity for applicant to respond to allegation or have support person present and respondent failed to consider applicant’s explanation. Respondent could not reasonably conclude applicant had stolen $15. Dismissal unjustified. REMEDIES: Respondent to pay applicant $4,662 reimbursement of lost wages. Applicant should have obtained express permission to keep $15 tip. 10 per cent contributory conduct. $5,400 compensation appropriate. |
| Result | Application granted; Reimbursement of lost wages ($4,662.50); Contributory conduct (10%); Compensation for humiliation etc ($5,400); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s4(1A)(c)(i);ERA s4(1A)(c)(ii);ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s103A(5);ERA s124;ERA s128(2) |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) (2011) 9 NZELR 40 |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Auckland_350.pdf [pdf 176 KB] |