| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 220 |
| Hearing date | 21 Aug 2012 |
| Determination date | 12 October 2012 |
| Member | J Crichton |
| Representation | S Zindel, H McKinnion ; S Fairclough |
| Location | Nelson |
| Parties | Cumming v Absolute Insurance Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent acknowledged failure to give applicant opportunity to be heard fatal to any prospect of justifying dismissal – Dismissal unjustified – REMEDIES – Authority found applicant dismissed for egregious wrongdoing in form of violence directed at co-worker, applicant’s apology grudging and given because it was sought, and no indication of subsequent remorse – 50 per cent contributory conduct - $5,000 compensation appropriate – Telemarketer |
| Abstract | Applicant employed by respondent as telemarketer. Applicant claimed unjustifiably dismissed by respondent. After altercation between applicant and supervisor (“B”), applicant stated if B did not shut mouth applicant would ‘smash’ B. Meeting held immediately between applicant, B and applicant’s manager (“P”). Applicant did not have support person present. Applicant understood meeting to be informal discussion but notes taken of meeting and provided subsequently to decision maker without opportunity for applicant to comment on accuracy of notes. P reported to respondent’s director who asked P to set up meeting with applicant. Applicant on sick leave and not willing or able to attend meeting. Applicant dismissed. Applicant claimed stressful workplace contributed to outburst.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent acknowledged failure to give applicant opportunity to be heard fatal to any prospect of justifying dismissal. Dismissal unjustified. REMEDIES: Applicant dismissed for egregious wrongdoing in form of violence directed at co-worker, applicant’s apology grudging and given because it was sought, and no indication of subsequent remorse. 50 per cent contributory conduct. No reimbursement of lost wages as applicant sick initially and then made conscious decision to return to tertiary study and not available for work while doing so. $5,000 compensation appropriate. |
| Result | Application granted; Contributory conduct (50%); Compensation for humiliation etc ($5,000); Disbursements in favour of applicant ($71.56)(filing fee); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s128;ERA s128(1)(b) |
| Cases Cited | Chief Executive of Department of Corrections v Dodds unreported, Goddard CJ, 4 March 2003, CC6/03 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Christchurch_220.pdf [pdf 161 KB] |