| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 424 |
| Hearing date | 12 Nov 2012 |
| Determination date | 28 November 2012 |
| Member | J Crichton |
| Representation | A Singh ; V Campbell |
| Location | Hamilton |
| Parties | Suhr v Prolife Foods Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for misappropriation of company property – Authority found applicant misled manager deliberately when asked for explanation – Found while applicant received limited amount of documentary evidence, applicant provided with clear verbal statement of what each witness said – Found evidence of applicant’s support person tended to confirm respondent’s conclusion applicant told variety of stories about when applicant received permission to remove alcohol – Found no permission given for applicant to remove alcohol – Found fair and reasonable employer could have concluded applicant guilty of serious misconduct – Dismissal justified – Production manager |
| Abstract | Applicant employed by respondent as production manager. Applicant claimed unjustifiably dismissed by respondent. During Christmas function, applicant and co-worker (“X”) removed alcohol from storage cupboard at another site. Fellow employee (“B”) noticed applicant and called manager (“D”) to ask if applicant and X should be on current site. B claimed saw applicant and X wait until D had left site car park before proceeding to car park. D called applicant to ask for explanation and told applicant had not taken anything from building. Applicant claimed called by D when still in building so not untrue to tell D had not taken anything from building. Respondent’s operations manager (“L”) called D and told applicant denied taking anything. L called applicant and applicant admitted immediately had removed alcohol from site. At meeting on same day with L and second manager (“N”) applicant claimed received permission to take alcohol from D during Christmas function. Applicant also advanced proposition received permission to take leftover alcohol from D some weeks earlier. D denied gave applicant permission to take alcohol and denied talking to applicant at Christmas function. Applicant attended further meeting five days later. Applicant claimed unfairness as L on leave and replaced at meeting by other manager. N claimed applicant now claimed had received permission from D to remove alcohol at warehouse and applicant maintained X present when D gave permission. Applicant confirmed did not have specific permission to take alcohol from secure storeroom. Applicant dismissed. Applicant claimed respondent relied on witness statements not put to applicant. Applicant claimed process should have been delayed until D returned from annual leave. Applicant claimed had reasonable expectation could remove and consume alcohol.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: D did not call applicant to ask for explanation until after applicant outside premises. Applicant deliberately misled D when asked for explanation. No unfairness in change of respondent’s personnel attending second meeting as N attended both meetings and not unreasonable for some changes in personnel given time of year. Difficulty with applicant’s claim X heard D give applicant permission to remove alcohol X’s statement no permission given within X’s hearing. While applicant received limited amount of documentary evidence, applicant provided with clear verbal statement of what each witness said. Process not invalidated by respondent not waiting for D to return from annual leave. Evidence of applicant’s support person tended to confirm respondent’s conclusion applicant told variety of stories about when applicant received permission to take alcohol. No permission given for applicant to remove alcohol. No reasonable expectation applicant could remove alcohol as alcohol taken from area applicant not entitled to take alcohol from and no evidence D gave permission for applicant to remove alcohol. While D contemplated sharing surplus alcohol among staff, not in D’s contemplation applicant would take alcohol to share with X only. No steps taken by applicant to verify entitled to take alcohol. Fair and reasonable employer could have concluded applicant guilty of serious misconduct. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Sherwood v Woolworths NZ Ltd [2002] 2 ERNZ 508 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Auckland_424.pdf [pdf 180 KB] |