| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 387 |
| Determination date | 26 October 2012 |
| Member | E Robinson |
| Representation | M Tiller (in person) ; J O'Connell |
| Parties | Tiller v New Zealand Car Rental Specialists 2004 Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed trust and confidence in applicant undermined by applicant dishonestly using document and assisting respondent’s director conduct fraudulent activities against respondent – Authority found respondent’s trust and confidence in applicant undermined by applicant’s actions – Found dismissal substantively justified – Found applicant not provided with details of allegations underpinning dismissal or opportunity to offer explanation – Dismissal unjustified – REMEDIES – 100 per cent contributory conduct – No remedies awarded – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Respondent accepted owed applicant arrears of wages but disputed quantum – Found no documentary evidence applicant employee during initial period of six months – Found no evidence issue of non-payment of wages raised with respondent during initial period – Found applicant not employed by respondent during initial period – Found applicant entitled to wages for two week notice period – Respondent to pay applicant $2,632 arrears of wages and $1,069 arrears of holiday pay |
| Abstract | Applicant claimed unjustifiably dismissed by respondent and sought arrears of wages and holiday pay. Parties disputed employment start date. Respondent’s director (“C”) accepted authorised two payments to applicant during initial period but claimed not wage payments. C involved Police after became concerned about withdrawals on company refund card and applicant subsequently convicted of dishonestly using document and ordered to make reparation of $20,370 to respondent. Applicant claimed actions justified as any financial damage to respondent due to respondent’s failure to pay wages. At urging of respondent’s director (“A”), C agreed to maintain applicant’s employment. Applicant claimed C signed paid parental leave application form stating applicant would have been employed by respondent for one and a half years at applicant’s baby’s due date. C accepted signature on document C’s but claimed did not recall signing and would not knowingly have signed form indicating applicant would have been employed for time specified. C claimed remained concerned about operations at applicant’s branch and hired private investigator. Investigator’s report indicated A had set up own company, was conducting fraudulent activities against respondent and applicant assisting A. Applicant suspended. C claimed attempted unsuccessfully to contact applicant. Applicant dismissed. Applicant denied receiving dismissal letter. Respondent accepted owed applicant wages but disputed quantum. Respondent claimed applicant’s breach of duty of fidelity negated respondent’s promise to pay applicant’s wages up to date specified in dismissal letter.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent’s trust and confidence in applicant undermined by applicant’s actions. Dismissal substantively justified. Applicant not informed of nature of meeting where applicant suspended, given opportunity to have representative present or given opportunity to comment before decision made. Applicant not provided with details of allegations underpinning dismissal or opportunity to offer explanation. Dismissal unjustified. REMEDIES: 100 per cent contributory conduct. No remedies awarded.;ARREARS OF WAGES AND HOLIDAY PAY: Two payments to applicant during initial period consistent with C’s claim payments ad hoc and not wages. E-mails produced by applicant inconclusive. Parental leave form signed by C not credible evidence of applicant’s start date when weighed against other evidence. No documentary evidence applicant employee during initial period. No evidence applicant or A raised issue of non-payment of wages with C during six months of initial period. Applicant not employed by respondent during initial period and not entitled to arrears of wages. Applicant aware employment terminated by letter. Applicant’s breach of duty of fidelity known to respondent when applicant suspended and dismissed. Applicant entitled to wages for two week notice period. Respondent to pay applicant $2,632 arrears of wages and $1,069 arrears of holiday pay. |
| Result | Applications granted; Contributory conduct (100%); Arrears of wages ($2,632.26); Arrears of holiday pay ($1,069.94); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Crimes Act 1961;Crimes Act 1961 s228(b);ERA s103A;ERA s124 |
| Cases Cited | NZ (with exceptions) Food Processing etc IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Cas 582;Police v Tiller unreported, Judge Malosi, CRI-2008-092-012049 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Auckland_387.pdf [pdf 236 KB] |