| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 431 |
| Hearing date | 26 Nov 2012 |
| Determination date | 03 December 2012 |
| Member | J Crichton |
| Representation | J Howes (in person) ; D Foster |
| Location | Whangarei |
| Parties | Howes v Goldenflow Trust |
| Summary | UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant had extensive criminal history and more likely than not applicant not truthful about criminal history at pre-employment interview – Found parties’ employment relationship not casual – Found no evidence to corroborate applicant’s allegations had been physically assaulted by respondent director several times - Authority preferred respondent’s evidence respondent had not verbally abused applicant – Found applicant dismissed by respondent – Found reasonable employer would not have dismissed applicant when parties’ employment agreement contemplated permanent employment - Dismissal unjustified – REMEDIES - 100 per cent contributory conduct - Remedies not appropriate – HEALTH AND SAFETY – Applicant claimed respondent failed to provide safe workplace - Authority preferred respondent’s evidence gloves always available for applicant to use – Found was asbestos at worksite but preferred respondent’s evidence applicant told not to remove material suspected to contain asbestos – Found respondent had not failed to provide safe workplace - Application dismissed - Beekeeper |
| Abstract | Applicant employed by respondent as beekeeper. Applicant claimed unjustifiably dismissed by respondent. Applicant claimed respondent verbally abused and physically assaulted applicant including respondent hitting applicant with part of beehive frame. Parties disputed whether applicant offered permanent fulltime employment. Parties’ employment agreement (“EA”) did not define parties’ relationship. Respondent claimed applicant employed for six month season only. EA clauses referred to wage increase after first year of employment and used phrase “if and when” employment ended. Applicant’s role involved accessing beehives located on property of third parties. Applicant claimed before employment commenced disclosed all previous offending. Respondent’s principal (“W”) claimed applicant only advised respondent of some offending and, if had been aware of full extent of applicant’s offending, would not have offered applicant employment as applicant’s position required integrity. W claimed applicant only told W that applicant had been charged with receiving stolen geckos and had received periodic detention sentence relating to unpaid vehicle fines. Applicant claimed respondent had failed to provide safe workplace as no equipment provided to protect applicant’s hands from hot water and potential for asbestos at worksite. Respondent director’s daughter claimed applicant provided with gloves. Respondent claimed worksite checked by council and asbestos issue resolved. Applicant raised grievance relating to alleged acts of violence and abuse and health and safety breaches by respondent. Respondent told applicant “casual” employment had ended.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority noted parties consented to correction of respondent’s name. Respondent’s wage and time records incomplete but not appropriate to take matter further in circumstances. EA did not support respondent’s claim applicant’s employment seasonal. Applicant had extensive criminal history and had received conviction for theft of geckos rather than merely charged with receiving stolen geckos. More likely than not applicant not truthful at pre-employment interview. Some evidence applicant aware employment seasonal in nature but nothing in EA to suggest employment only seasonal or casual. Applicant worked regular hours each day for many months. Parties’ employment relationship not casual. No evidence to corroborate applicant’s allegation had been physically assaulted by respondent and, if applicant had been hit with part of beehive frame, applicant likely to have needed medical attention. On balance of probabilities respondent did not physically assault applicant. Authority preferred respondent’s evidence had not verbally abused applicant. Applicant dismissed by respondent. Reasonable employer would not have dismissed applicant when parties’ EA contemplated permanent employment. Dismissal unjustified. REMEDIES: 100 per cent contributory conduct. Remedies not appropriate.;HEALTH AND SAFETY: Authority preferred respondent’s evidence gloves always available and applicant should not have placed hands anywhere near hot water. Was asbestos at worksite but Authority preferred respondent’s evidence applicant told not to remove material suspected to contain asbestos. Respondent had not failed to provide safe workplace. Application dismissed. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (100%) ; Application dismissed (health and safety) ; Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | ERA s65;ERA s103A;ERA s124;Health and Safety in Employment Act 1992 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Auckland_431.pdf [pdf 174 KB] |