| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 150 |
| Hearing date | 10 Jul 2012 |
| Determination date | 03 December 2012 |
| Member | P R Stapp |
| Representation | A Hope, G Derbyshire ; J & K Langton |
| Location | New Plymouth |
| Parties | Tohaia v Ihaia Te Mara Trust |
| Summary | UNJUSTIFIED DISMISSAL – Abandonment – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant abandoned employment or alternatively applicant admitted to smoking marijuana - Authority found most likely applicant did work on particular day respondent claimed applicant did not work - Found as most likely applicant did work on particular day applicant could not have abandoned employment – Found due to conflicting evidence over how applicant requested leave, absence of formal leave process and likely that applicant did work on particular day, dismissal on basis applicant had abandoned employment unjustified – Found respondent unable to prove applicant had admitted during meeting had been smoking marijuana – Found respondent did not obtain sufficient evidence to satisfy very serious allegation - Found dismissal on basis applicant admitted to smoking marijuana unjustified – Dismissal unjustified - REMEDIES - No contributory conduct – Found compensation not appropriate - Respondent to pay applicant $2,895 reimbursement of lost wages – Farm Worker |
| Abstract | Applicant employed by respondent as farm worker. Applicant claimed unjustifiably dismissed by respondent. Respondent claimed applicant abandoned employment or alternatively applicant admitted to smoking marijuana. Applicant claimed parties had leave arrangement where applicant would send respondent text message requesting leave and respondent trustee (“L”) would approve applicant’s request. Parties held meeting to discuss applicant taking leave. L claimed did not authorise applicant to take any leave and discouraged applicant from sending L text message requesting leave. L claimed when questioned by L applicant told L had been smoking marijuana. Applicant denied admitted had been smoking marijuana at parties’ meeting. L claimed applicant’s unauthorised absence on particular day a week later contributed to decision applicant had abandoned employment and, after applicant admitted smoking marijuana, decision to dismiss applicant justified. Applicant claimed worked particular day. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: L’s view of matter influenced by applicant’s alleged behaviour and background. L had authorised some leave taken by applicant and key issue between parties was whether applicant worked particular day. L did not refer to applicant’s absences as unauthorised when decided to dismiss applicant and only used absences as background and sought explanations. Most likely applicant did work on particular day and applicant could not have abandoned employment. Respondent should have contacted applicant in writing before concluded applicant had abandoned employment. Due to conflicting evidence over how applicant requested leave, absence of formal leave process and likely that applicant did work on particular day, dismissal on basis applicant had abandoned employment unjustified. Respondent failed to conduct investigation or consider alternatives to dismissal. Parties’ meeting on informal basis and applicant not on notice of respondent’s concerns prior to meeting. Was discussion about whether applicant had been smoking marijuana but any admission by applicant needed to be put into context. L had not provided sufficient proof that applicant putting applicant or others at risk by smoking marijuana while working. L unable to prove applicant had admitted during meeting had been smoking marijuana. Respondent allowed week to pass after meeting before applicant dismissed. Respondent did not obtain sufficient evidence to satisfy very serious allegation. Dismissal on basis applicant admitted to smoking marijuana unjustified. Dismissal unjustified. REMEDIES: No contributory conduct. Compensation not appropriate. Respondent to pay applicant $2,895 reimbursement of lost wages. |
| Result | Application granted ; Reimbursement of lost wages ($2,895.53) ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Wellington_150.pdf [pdf 232 KB] |