| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 243 |
| Hearing date | 19 Sep 2012 |
| Determination date | 06 November 2012 |
| Member | D Appleton |
| Representation | J Goldstein ; D Kilpatrick |
| Location | Christchurch |
| Parties | Liu v Blackwell Motors Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent and respondent breached good faith obligations towards applicant – Authority found fair and reasonable employer would not have failed to provide respondent with documentation before made decision – Found fair and reasonable employer would not have concluded that experienced employee such as applicant would have failed to carry out testing on vehicle - Respondent viewed applicant’s alleged failure to do testing as “oversight” therefore alternatively fair and reasonable employer would not have viewed applicant’s actions as serious misconduct - Dismissal unjustified – REMEDIES - No contributory conduct - Respondent to pay applicant $35,120 reimbursement of lost wages - $10,000 compensation appropriate - Mechanic |
| Abstract | Applicant employed as mechanic. Applicant claimed unjustifiably dismissed by respondent and respondent failed to meet good faith obligations. Applicant’s tasks included jacking up vehicle wheels and checking bearings and king pins. Applicant performed inspection and found vehicle failed inspection as vehicle’s king pins needed to be repaired. Applicant claimed was told by respondent receptionist (“P”) to order more king pins. Applicant claimed also noticed grease around vehicle’s wheel bearings needed to be replaced. Applicant claimed told by P vehicle’s owner needed vehicle back urgently so only had time to adjust vehicle’s wheel bearings before vehicle removed. Vehicle returned to respondent with significant damage including disintegrated wheel bearings. Applicant claimed previous testing of vehicle did not indicate any problems with wheel bearing. Respondent claimed applicant did not carry out testing as would have detected problems and disintegration of wheel bearings was serious fault which could have caused serious accident. Applicant claimed testing of vehicle would not always detect all faults. Investigation commenced. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of details relating to vehicle and owner of vehicle serviced by applicant. Applicant’s method of testing vehicle was industry accepted test and usually reliable method of detecting vehicle faults. Applicant not provided with documentation relating to work on vehicle until after dismissed. Even if accepted respondent’s evidence as to when applicant received documentation, applicant did not receive documentation until after respondent decided allegations proven. Respondent’s actions breached good faith obligations owed applicant. Fair and reasonable employer would not have failed to provide respondent with documentation before decision made. Respondent did not speak to P about matter and flaw in respondent’s process. Respondent concluded applicant’s actions amounted to serious misconduct before completed investigation. Respondent reasonably concluded vehicle fault existed when applicant inspected vehicle. Fair and reasonable employer would not have concluded that experienced employee such as applicant would have failed to carry out testing on vehicle. Respondent viewed applicant’s alleged failure to do testing as “oversight” therefore alternatively fair and reasonable employer would not have viewed applicant’s actions as serious misconduct. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $35,120 reimbursement of lost wages. $10,000 compensation appropriate. |
| Result | Application granted ; Compensation for humiliation etc ($10,000) ; Reimbursement of lost wages ($35,120) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A(2);ERA s103A(3);ERA s128;ERA s128(2);ERA s128(3);ERA Second Schedule cl11 |
| Cases Cited | Honda New Zealand Ltd v New Zealand Boilermakers Union (1990) ERNZ Sel Cas 855 ; [1991] 1 NZLR 392;Makatoa v Restaurant Brands (New Zealand) Ltd [1999] 2 ERNZ 311;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 ; [2001] 3 NZLR 29 |
| Number of Pages | 20 |
| PDF File Link: | 2012_NZERA_Christchurch_243.pdf [pdf 234 KB] |