| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 229 |
| Hearing date | 31 Oct 2011 |
| Determination date | 24 October 2012 |
| Member | H Doyle |
| Representation | M J Thomas ; R Chapman, A Stevens |
| Location | Invercargill |
| Parties | Brocks v Prime Range Meats Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged by respondent’s actions – Authority found respondent’s refusal to pay applicant outstanding bonus unjustified breach of employment agreement but no compensation relating to bonus payments appropriate – Found fair and reasonable employer would have suspended applicant during investigation rather than requesting applicant use annual leave and preventing applicant from going to part of workplace – Found applicant unjustifiably disadvantaged by request applicant use annual leave and requirement applicant to appear for work but movements restricted. Found applicant unjustifiably disadvantaged by respondent’s failure to provide respondent director’s notes on discussion with other employees when copies requested by applicant. Found global compensation for personal grievances appropriate – Found respondent did not conduct full and fair investigation into majority of allegations against applicant – Found serious and substantial procedural issues with respondent’s investigation and fair and reasonable employer would not have concluded applicant’s conduct amounted to serious misconduct without further investigation - Dismissal unjustified – REMEDIES - 50 per cent contributory conduct - Respondent to pay applicant $8,673 reimbursement of lost wages – Found $541 compensation appropriate for loss of benefit relating to holiday pay – Found $655 compensation appropriate for loss of benefit relating to superannuation - Interest payable – Found $6,000 compensation appropriate for unjustified disadvantage claims and unjustified dismissal - ARREARS OF WAGES - Applicant claimed wages outstanding including bonus payments totalling $304,500 and sought arrears of wages - Authority found payment of applicant’s bonus not discretionary and full year of management by applicant not required before bonus payable – Respondent to pay applicant $88,276 arrears of wages as outstanding bonus over three years - Interest payable - Chief Executive Officer |
| Abstract | Applicant employed as chief executive officer. Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged by respondent banning applicant from workplace, refusing to provide requested information, removing applicant’s computer and not returning computer for two months and respondent’s refusal to pay bonus. Applicant claimed wages outstanding including bonus payments totalling $304,500 and sought arrears of wages. Respondent involved in meat processing and export industry. Respondent denied applicant unjustifiably disadvantaged and claimed applicant justifiably dismissed due to serious misconduct. Respondent claimed payment of bonus discretionary and no bonus outstanding. Parties did not have written employment agreement (“EA”). EA stated applicant “will be” entitled to “performance bonus” annually of five per cent of net profit of “the company”. Respondent claimed payment of bonus subject to applicant’s satisfactory performance. Applicant claimed “company” referred to respondent and subsidiary of respondent (“PRLL”) therefore applicant entitled to two separate bonuses from respondent and PRLL. Parties disputed applicant’s involvement in PRLL. Respondent claimed became concerned about applicant’s performance. Respondent did not take formal steps to raise concerns about applicant’s performance with applicant until six months later. Respondent raised general concerns about applicant’s management ability and sought applicant’s input. Respondent set out details of allegations in letter to applicant. Before parties’ meeting respondent discovered allegation applicant instigated swapping of stock ear tags. Respondent received stock with ear tags identifying which farm stock received from. Ear tags required by New Zealand Food Safety Authority and stock that arrived at respondent without ear tag condemned and meat not for human consumption. Respondent’s accountant (“W”) claimed ear tags from dead stock put on stock that had arrived at respondent without ear tag. W claimed when raised matter applicant not concerned and disinterested. Applicant denied any involvement in practice of swapping ear tags. Respondent alleged at meeting applicant instigated practice, alternatively did nothing about practice on discovery and failed to launch investigation. Applicant denied instigated practice and claimed when discovered practice instructed respondent supervisor to ensure did not happen again and employee involved in practice issued with warning. Applicant denied told by W about practice. Applicant’s computer removed from office and applicant claimed personal drive had also been taken. F asked applicant to take annual leave or alternatively not to go on respondent’s plant and use office only. Respondent claimed applicant had falsified respondent’s records relating to handling of ear tag matter. F had discussions with respondent employee about practice and applicant’s handling of matter. Respondent did not provide applicant with F’s notes of discussions with employees. Applicant claimed respondent’s records had been fabricated but denied had any involvement. Respondent claimed applicant had authorised stock payment to be made to applicant’s partner although no basis for payment to be made and applicant had downloaded highly confidential information applicant had no right to access. Applicant denied payment had been inappropriately made to applicant’s partner and claimed had downloaded financial information so could help colleague with balancing accounts. Applicant dismissed.;AUTHORITY FOUND –;ARREARS OF WAGES: Applicant entitled to bonus payment if respondent made net profit. Applicant not entitled to separate bonus payments from both respondent and PRLL. Payment of applicant’s bonus not discretionary and full year of management by applicant not required before bonus payable. EA bonus clause defined net profit and respondent’s annual financial statements should be relied on when calculating applicant’s bonus. Respondent to pay applicant $88,276 arrears of wages as outstanding bonus over three years. Interest payable.;UNJUSTIFIED DISADVANTAGE: Respondent’s refusal to pay applicant outstanding bonus unjustified breach of EA but no further compensation relating to bonus appropriate. Fair and reasonable employer would have suspended applicant in circumstances rather than requesting applicant use annual leave and prevented applicant from going to plant. Applicant unjustifiably disadvantaged by request use annual leave and required to appear for work with no computer and restricted movements. Fair and reasonable employer would have shown applicant F’s notes on employee discussions about ear tag matter when requested. Applicant unjustifiably disadvantaged by respondent’s failure to provide F’s notes. Global compensation for personal grievances appropriate.;UNJUSTIFIED DISMISSAL: Respondent’s allegations about applicant failing to manage ear tag matter and ensure practice ceased not clearly set out as separate matters by respondent. Applicant not given opportunity to respond to allegations aware that could be dismissed. Applicant had opportunity to respond to allegation had falsified respondent’s records but not provided with copy of F’s notes relating to discussion with other employees. Applicant given opportunity to respond to allegation had authorised commission payment made to applicant’s partner. Applicant had opportunity to respondent to allegation had accessed respondent’s confidential information without authorisation but respondent should have contacted accountants before applicant dismissed. Allegation applicant had falsely claimed F had taken applicant’s drive not clearly put to applicant by respondent. Respondent did not conduct full and fair investigation into majority of allegations against applicant. Serious and substantial procedural issues with respondent’s investigation and fair and reasonable employer would not have concluded applicant's conduct amounted to serious misconduct without further investigation. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Respondent to pay applicant $8,673 reimbursement of lost wages. $541 compensation appropriate for loss of benefit relating to holiday pay. $655 compensation appropriate for loss of benefit relating to superannuation. Interest payable. $6,000 compensation appropriate for unjustified disadvantage claims and unjustified dismissal. |
| Result | Applications granted ; Contributory conduct (50%) ; Reimbursement of lost wages ($8,673.11) ; Compensation for loss of benefit (holiday pay)($541.54) ; Compensation for loss of benefit (superannuation)($655.77) ; Compensation for humiliation etc ($6,000) ; Arrears of wages ($88,276) ; Interest payable (5%) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA Second Schedule cl11;Holidays Act 2003;Judicature Act 1908 s87(3) |
| Cases Cited | Terson Industries Ltd v Loder (2009) 6 NZELR 345 |
| Number of Pages | 35 |
| PDF File Link: | 2012_NZERA_Christchurch_229.pdf [pdf 420 KB] |