| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 432 |
| Hearing date | 19 Sep 2012 |
| Determination date | 03 December 2012 |
| Member | J Crichton |
| Representation | T Hipkiss ; S Franklin |
| Location | Whakatane |
| Parties | Gardner v Mallowbay Holdings Ltd and Anor |
| Other Parties | Isaac |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Authority found applicant’s employment agreement with first respondent and wages paid by first respondent – Found applicant employed by first respondent – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by first respondent – First respondent claimed applicant justifiably dismissed after admitting possession of cannabis plant found on first respondent’s premises – Found applicant not dismissed for incapacity after earlier accident – Found more likely than not applicant made statement to effect police had ‘got’ applicant in presence of second respondent’s wife – Found police process after discovering cannabis involving taking applicant away and reasonable assumption applicant would be charged meant immediate decision required – Found merit in first respondent’s arguments any investigation pointless in face of admission of criminal wrongdoing involving use of first respondent’s property – Dismissal justified – Milker |
| Abstract | Applicant employed as milker. Applicant claimed employed by second respondent rather than first respondent. Second respondent sole director and shareholder of first respondent. Applicant sustained injuries after motorbike accident. Applicant claimed told by second respondent if not well enough to do milking not to come back. Applicant claimed message meant applicant dismissed if unable to return to work. Second respondent denied dismissing applicant. Second respondent conceded may have sent message but claimed telling applicant not to return if return would be injurious to applicant’s health. Second respondent’s wife (“I”) claimed saw applicant behaving suspiciously near barn and after investigating discovered cannabis. I called police. I claimed applicant arrived and said to police officer words to effect officer had ‘got’ applicant and apologised to I. I claimed police officer stated presumed I would dismiss applicant and applicant agreed. Applicant dismissed. First respondent claimed seriousness of situation and abuse of trust associated with storing illegal substances on first respondent’s property meant dismissal without process justified. Applicant denied making admission to police. Applicant arrested but not charged. No mention in police report applicant admitted liability for cannabis but evidence of fellow employee (“H”) clear applicant made statement to effect police had ‘got’ applicant. H clear applicant never said cannabis belonged to applicant or made other statement linking applicant more closely with cannabis.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Applicant’s employment agreement with first respondent and paid wages by first respondent. Actions taken by second respondent in capacity as director of first respondent. Applicant employed by first respondent.;UNJUSTIFIED DISMISSAL: Reasonable for first respondent to ascertain when applicant would return to work given intermittent work performed by applicant since accident. Applicant not dismissed for incapacity. More likely than not applicant made statement to effect police had ‘got’ applicant in I’s presence. Police process after discovering cannabis involving taking applicant away to assist in enquiries and reasonable assumption applicant would be charged meant immediate decision required. I in sole charge of farm at time and had little time to react to situation or seek explanations from applicant. Merit in first respondent’s arguments any investigation pointless in face of admission of criminal wrongdoing involving use of first respondent’s property. Dismissal justified. |
| Result | Application dismissed; Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Trespass Act 1980 |
| Cases Cited | Gardner v Mallowbay Holdings Ltd [2011] NZERA Auckland 526 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Auckland_432.pdf [pdf 172 KB] |