| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 374 |
| Hearing date | 18 Sep 2012 |
| Determination date | 16 October 2012 |
| Member | J Crichton |
| Representation | D Flaws ; A Khan |
| Location | Te Puke |
| Parties | Powrie v Te Puke Partsworld Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent – Authority found applicant unable to issue Warrant of Fitness for vehicles until completed apprenticeship and not that applicant reluctant to obtain further qualifications – Found no evidence of theft of petrol and applicant sought respondent director’s (“K”) permission to extract petrol from vehicles for personal use – Found no evidence applicant threw pay slip at K’s head but throwing payslip at K inappropriate action by employee in any circumstances – Found respondent’s decision to dismiss applicant made in heat of moment and not action of fair and reasonable employer - Dismissal unjustified – REMEDIES - 70 per cent contributory conduct - $2,000 compensation appropriate - Respondent to pay applicant $1,620 reimbursement of lost wages – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent’s actions – Applicant unjustifiably disadvantaged by respondent’s failure to provide written employment agreement – Applicant unjustifiably disadvantaged by unilateral reduction of applicant’s pay – REMEDIES - No contributory conduct - $3,500 compensation appropriate - Mechanic |
| Abstract | Applicant employed as mechanic. Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed. Applicant effectively recruited by respondent’s manager (“T”). Parties did not have written employment agreement (“EA”). Applicant claimed although employed as mechanic, did very little mechanical work and workplace did not establish operational workshop. Applicant claimed pay rate reduced twice during employment. Applicant and respondent director (“K”) had difficult relationship. K claimed was told applicant legally able to certify vehicles for Warrant of Fitness (“WoF”) purposes and one of reasons why employed applicant. Applicant claimed never asked by T if could issue WoFs. T claimed could not remember whether had asked applicant if could issue WoFs. K later discovered applicant could not issue WoFs as had not completed apprenticeship. Parties disputed whether applicant accepted K’s suggestion that respondent would pay for applicant’s training to enable applicant to issue WoFs. Respondent claimed applicant reluctant to obtain further qualifications. Applicant claimed tried to tell K was not course available. Parties disputed whether respondent employees entitled to extract petrol from wrecked vehicles for personal use. K discovered applicant had used work time to parcel up and courier item had sold privately and deducted 15 minutes from applicant’s wages. Applicant claimed had worked extra time to cover time spent on parcel and had asked another staff member for permission to use respondent’s courier. When applicant discovered deduction threw pay slip at K. K claimed applicant aimed pay slip at K’s head. K told applicant to leave if did not like K’s decision. Applicant attempted to explain could not be dismissed in that manner but, when K did not respond, swore at K and requested final pay.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority preferred applicant’s evidence applicant not asked before offered employment whether could issue WoFs. Accepted applicant’s evidence no further training available enabling applicant to issue WoFs instead applicant needed to complete apprenticeship. No evidence of theft of petrol and applicant sought K’s permission to extract petrol for personal use. Alternatively issues raised by K at investigation meeting not previously raised with applicant as basis for dismissal. No evidence applicant threw pay slip at K’s head but throwing payslip at K inappropriate action by employee in any circumstances. Respondent’s decision to dismiss applicant made in heat of moment and not action of fair and reasonable employer. Respondent did not conduct any inquiry or reflect on decision to make deduction from applicant’s wages. Applicant not given opportunity to respond to any of K’s complaints about applicant’s conduct. Dismissal unjustified. REMEDIES: 70 per cent contributory conduct. $2,000 compensation appropriate. Respondent to pay applicant $1,620 reimbursement of lost wages.;UNJUSTIFIED DISADVANTAGE: Applicant’s pay rate reduced once during employment and was unilateral reduction. Applicant unjustifiably disadvantaged by respondent’s failure to provide written EA as failure contributed to respondent’s failure to maintain applicant on agreed rate of pay. Applicant unjustifiably disadvantaged by unilateral reduction of applicant’s pay. REMEDIES: No contributory conduct. $3,500 compensation appropriate. |
| Result | Applications granted ; Contributory conduct (70%)(unjustified dismissal) ; Compensation for humiliation etc ($2,000)(unjustified dismissal) ; Reimbursement of lost wages ($1,620) ; Compensation for humiliation etc ($3,500)(unjustified disadvantage) ; Costs reserved ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s65(1)(a);ERA s103A;ERA s124 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Auckland_374.pdf [pdf 165 KB] |