| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 252 |
| Hearing date | 14 Mar 2012 |
| Determination date | 19 November 2012 |
| Member | H Doyle |
| Representation | K Coulston ; P Brown |
| Parties | Glen v Wilfred Investments Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for unauthorised removal of funds – Authority found absence of fair process as allegations not put to applicant and applicant not invited to attend meeting with representative for respondent to listen to applicant’s explanation – Found fair and reasonable employer would have considered whether applicant clear respondent would pay only for credit card purchases made for respondent’s benefit – Found proper investigation required before any conclusion as to substance of allegations arrived at – Dismissal unjustified – REMEDIES – 10 per cent contributory conduct – Respondent to pay applicant reimbursement of lost wages, quantum to be determined – $9,000 compensation appropriate – ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – Respondent to pay applicant arrears of holiday pay, parties to determine quantum – PENALTY – Applicant sought penalty for respondent’s failure to pay holiday pay – Found records applicant responsible for not accurate for other employees, possibility applicant did not record leave taken for overseas trip and unclear how applicant arrived at amount of arrears of holiday pay claimed – No penalty – COUNTERCLAIM – RECOVERY OF MONIES – BREACH OF CONTRACT – Respondent sought recovery of wages and overtime paid to applicant and unauthorised payments made to applicant’s credit card account – Respondent sought damages for applicant’s breach of employment agreement (“EA”) – Found not satisfied responsibility for part or most of respondent’s loss did not lie with people other than applicant and even if breaches of EA by applicant, not satisfied loss claimed attributable to breaches – No breach of contract – Found applicant worked overtime entitled to under EA – Found applicant entitled to be reimbursed for work purchases on applicant’s credit card – No recovery of monies – COUNTERCLAIM – PENALTY – Respondent sought penalty for applicant breaching EA by removing financial records – Found no evidence applicant removed records still missing – No penalty – Business development and financial manager |
| Abstract | Applicant employed by respondent as business development and financial manager. Applicant claimed unjustifiably dismissed by respondent and sought arrears of holiday pay and penalty for respondent’s failure to pay holiday pay. Applicant paid wages to employee of related company as not enough money in related company’s account. Applicant received e-mail from respondent’s director (“W”) making clear loaning money to other entities nor within applicant’s authority. Applicant denied seeing e-mail until applicant’s dismissal. W claimed also had discussion with applicant about intermingling funds from different businesses. Four months later applicant asked to attend meeting and discussion turned to restructure. Applicant claimed told by W applicant’s role disestablished. W claimed misunderstanding applicant’s role disestablished completely although accepted told applicant hours would be reduced. Applicant e-mailed W subsequently to set out applicant’s understanding of situation and express concerns. W replied same day stating no guarantee of full time employment for applicant, no acceptable full time alternative given applicant’s absolute requirement for 40 hours work per week and e-mail formal notice of redundancy. Applicant denied stated had requirement for 40 hours work per week. After notice of redundancy given applicant realised money outstanding on applicant’s credit card used for respondent’s expenses and paid credit card account from respondent. W claimed concerned some purchases on applicant’s credit card for other companies. Respondent claimed applicant made unauthorised removal of funds to applicant’s personal credit card and unauthorised reimbursement for materials purchased for related company. Respondent claimed second time applicant comingled unrelated company transactions without W’s approval. Applicant dismissed. Respondent sought recovery of wages and overtime paid to applicant and unauthorised payments made to applicant’s credit card account, and sought damages for applicant’s breach of employment agreement (“EA”). Respondent claimed accounts had to be reconstructed completely after applicant’s dismissal. Respondent sought penalty for applicant breaching EA by removing financial records. Applicant claimed removed only personal items from office and items applicant had at home because worked from home one day a week returned to respondent.;AUTRHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant not clear impact proposed changes would have on applicant’s position and advised position redundant on same day applicant sought clarification. Process not fair and reasonable and insufficient evidence redundancy genuine. Absence of fair process as misconduct allegations not put to applicant and applicant not invited to attend meeting with representative for respondent to listen to applicant’s explanation. Fair and reasonable employer would have considered whether applicant clear respondent would only pay for credit card purchases made for respondent’s benefit given applicant’s claim not clear about requirement not to co-mingle funds. No evidence purchases made by applicant not for work related expenses meaning applicant entitled to be reimbursed. Proper investigation required before any conclusion as to substance of allegations arrived at. Dismissal unjustified. REMEDIES: Applicant should have obtained authorisation before processing payment to applicant’s credit card account. 10 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $9,000 compensation appropriate.;ARREARS OF HOLIDAY PAY: Respondent to pay applicant arrears of holiday pay, parties to determine quantum.;PENALTY: Records applicant responsible for not accurate for other employees, possibility applicant did not record leave taken for overseas trip and unclear how applicant arrived at amount of arrears of holiday pay claimed. No penalty.;COUNTERCLAIM – RECOVERY OF MONIES – BREACH OF CONTRACT: No evidence applicant misrepresented skills at interview. Evidence suggested applicant did not question information provided with internally for processing and recording. Applicant’s approach resulted in payroll processing errors but payroll issues could not be attributed solely to applicant. Some errors in processing but some could be explained by lack of understanding of consequence, some historical and not identified as being made by applicant and some because applicant did not undertake full role as contemplated under job description. Even if breaches by applicant, not satisfied loss claimed by respondent attributable to breaches. No breach of contract. Applicant worked overtime entitled to under EA. Applicant entitled to be reimbursed for work purchases on applicant’s credit card. No recovery of monies.;COUNTERCLAIM – PENALTY: No evidence applicant removed records still missing. No penalty. |
| Result | Applications granted (unjustified dismissal)(arrears of holiday pay) ; Contributory conduct (10%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($9,000) ; Arrears of holiday pay (parties to determine quantum) ; Applications dismissed (penalty)(counterclaim – recovery of monies – breach of contract)(counterclaim – penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s124;ERA s128(3);Holidays Act 2003;Holidays Act 2003 s23 |
| Cases Cited | Mokomoko v La Famia Foundation NZ [2012] NZERA Christchurch 242 |
| Number of Pages | 22 |
| PDF File Link: | 2012_NZERA_Christchurch_252.pdf [pdf 324 KB] |