| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 421 |
| Hearing date | 26 Oct 2012 |
| Determination date | 27 November 2012 |
| Member | A Fitzgibbon |
| Representation | D Gelb ; S Boyle |
| Location | Auckland |
| Parties | Petersen v SB Auto Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant did not need to ask respondent for permission before purchasing item for personal use through respondent’s trade account – Found applicant did not attempt to dishonestly avoid paying for part for item – Found applicant’s conduct did not amount to serious misconduct – Found applicant’s dismissal predetermined and respondent did not comply with any of factors set out in s103A(3) Employment Relations Act 2000 - Dismissal unjustified – REMEDIES - Applicant did not advise respondent was attempting to get refund for second part and was why had not reimbursed respondent - 50 per cent contributory conduct - $2,500 compensation appropriate - Respondent to pay applicant $4,104 reimbursement of lost wages – Qualified Technician |
| Abstract | Applicant employed as qualified technician. Applicant claimed unjustifiably dismissed by respondent. Respondent claimed applicant justifiably dismissed for deliberately purchasing item for person use from supplier (“R”) through respondent’s trade account without respondent’s permission. Respondent claimed when applicant discovered could not use part and could not return item applicant attempted to hide item so would not have to reimburse respondent. Respondent purchased business (“X”) and continued employment of staff previously working for X. X allowed staff to purchase personal items from R using X’s trade account to receive trade discount. Applicant claimed not required to seek X’s permission each time purchased item for personal use with trade account and practice continued when respondent purchased X. Applicant claimed purchased item without seeking permission of respondent director (“B”), gave B cash to reimburse respondent and B made no comment about applicant using trade account to purchase personal items. Respondent’s manager (“N”) claimed staff could use trade account to purchase personal items but common courtesy for staff, while employed by X or respondent, to seek permission first. B claimed applicant smoked in workshop and customers’ cars, worked on own vehicles during work time without seeking permission, rude to customers and used trade account without permission. Respondent requested applicant attend monthly meetings to discuss issues. Applicant denied respondent raised trade account issue at meetings. Applicant purchased part for own vehicle (second part") through trade account but part did not fit applicant's vehicle. R told applicant to bring part in so R could determine if part could be returned. Applicant unable to return part to R same day. N discovered invoice for second part next day and noted applicant had not written anything on invoice. B claimed applicant had hidden invoice for second part so applicant did not need to reimburse respondent for part. Applicant away on leave and returned to work five days later. Applicant dismissed at disciplinary meeting.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent’s evidence of meetings with applicant inconsistent, specifically whether meeting held on particular date. Meeting was held on particular date but parties did not discuss trade account issue. Applicant followed same process when purchasing personal items through trade account after respondent purchased X and respondent did not change practice. Applicant did not need to ask for permission before purchasing item using trade account. Applicant did not attempt to dishonestly avoid paying for second part. Noted invoice identified applicant’s registration and applicant clearly identified as purchaser. Applicant’s conduct did not amount to serious misconduct. Applicant’s dismissal predetermined. Respondent did not comply with any of factors set out in s103A(3) Employment Relations Act 2000. Dismissal unjustified. REMEDIES: Applicant did not advise respondent was attempting to get refund for second part and was why had not reimbursed respondent. 50 per cent contributory conduct. $2,500 compensation appropriate. Respondent to pay applicant $4,104 reimbursement of lost wages." |
| Result | Application granted ; Contributory conduct (50%) ; Compensation for humiliation etc ($2,500) ; Reimbursement of lost wages ($4,104) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Auckland_421.pdf [pdf 303 KB] |