| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 157 |
| Hearing date | 25 Sep 2012 |
| Determination date | 10 December 2012 |
| Member | M Ryan |
| Representation | S Emslie ; W Abraham |
| Location | Whanganui |
| Parties | Hoani v Rangitikei Enterprises Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent on ground of redundancy – Respondent claimed applicant justifiably dismissed for causing serious damage to truck, bullying fellow employee (“K”) and taking K’s truck – Authority found applicant dismissed for serious misconduct – Found respondent’s inquiries into incident brief but satisfactory – Found in absence of explanation from applicant open to respondent to form view applicant caused damage to truck, threatened K and took K’s truck without authorisation – Found respondent did not raise specific concerns with applicant – Found applicant not warned failure to respond to questions may result in applicant being dismissed without input and no evidence applicant advised could have a representative present or may be dismissed depending on responses – Dismissal unjustified – REMEDIES – 90 percent contributory conduct – $500 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Found applicant not paid fully and respondent unable to recover any overpayments under employment agreement by way of set-off without prior discussion with applicant – Found applicant employed pursuant to casual employment agreements providing hourly rate of pay included holiday pay but examination of applicant’s payslips showed applicant underpaid – Found respondent accepted applicant not paid fully during notice period – Respondent to pay applicant $1,393 arrears of wages and holiday pay – Truck driver |
| Abstract | Applicant employed by respondent as truck driver. Applicant claimed unjustifiably dismissed by respondent and sought arrears of wages and holiday pay. Applicant claimed not paid fully. Respondent claimed had discussions with applicant about payroll difficulties and had overpaid applicant’s holiday pay entitlements. Applicant denied agreed to pay back overpayments. Applicant claimed employed as permanent employee and although signed subsequent employment agreement (“EA”) titled “casual employment agreement”, claimed EA backdated to start of applicant’s employment and told by respondent new EA same as old EA. Applicant claimed respondent reduced applicant’s hourly rate unilaterally. Respondent claimed applicant signed casual EA when commenced employment, dismissed ten months later after returning positive drug test and re-employed two weeks later as casual employee, although new EA not signed by applicant. Both casual EAs provided applicant’s hourly rate included holiday pay. Applicant accepted returned positive drug test but claimed allowed to stand down for two weeks and not dismissed. Six months later applicant’s truck damaged after door left open and fellow employee (“K”) drove into door. Applicant claimed K agreed applicant could take K’s truck to complete run. Applicant claimed spoke to respondent’s director (“A”) later same day about taking holidays, told by A respondent restructuring and may be reduction in hours available to applicant, heated discussion about applicant’s holiday entitlements and applicant dismissed on ground of redundancy. A claimed truck incident reported by K who claimed applicant threatened and bullied K to such extent K allowed applicant to take K’s truck. A claimed K provided detailed verbal and written reports and A tried to contact applicant unsuccessfully. When applicant returned from run, A claimed asked applicant twice “what happened” but applicant went quiet and did not reply. A claimed entitled to rely on information provided by K given applicant’s failure to provide explanation. Applicant dismissed. Applicant claimed not paid fully during notice period.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant’s version of discussion with A thoroughly unconvincing. Applicant dismissed for serious misconduct. Respondent’s inquiries into incident brief but satisfactory when measured against respondent’s resources. Applicant did not engage with A regarding incident and reasonable for A to assume applicant did not want to say what had happened because did not have plausible explanation. Not unreasonable for respondent to rely on information obtained from K indicating serious misconduct by applicant and, in absence of any response by applicant, open to respondent to form view applicant caused damage to truck, threatened K and took K’s truck without authorisation. A asked applicant “what happened” but did not raise specific concerns applicant took K’s truck without authorisation, bullied or threatened K and caused damage to truck. Applicant not warned failure to respond to questions may result in applicant being dismissed without input and no evidence applicant advised could have representative present or may be dismissed depending on responses. Dismissal unjustified. REMEDIES: 90 percent contributory conduct. $500 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant not paid fully. Even if conversations between parties about overpaid holiday pay, respondent unable to recover overpayments under EA by way of set-off without prior discussion with applicant. Applicant employed pursuant to casual EA, dismissed following positive drug test and re-employed as casual employee. Both casual EAs provided hourly rate of pay included holiday pay, but examination of applicant’s payslips showed applicant underpaid. Respondent accepted applicant not paid fully during notice period. Respondent to pay applicant $1,393 arrears of wages and holiday pay. |
| Result | Applications granted ; Contributory conduct (90%) ; Compensation for humiliation etc ($500) ; Arrears of wages and holiday pay ($1,393.55) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s103A(2);ERA s103A(3);ERA s103A(4);ERA s124;ERA s128(2);Wages Protection Act 1983 s4;Wages Protection Act 1983 s6 |
| Cases Cited | Amaltal Fishing Co Ltd v Morunga [2002] 1 ERNZ 692;Argosy Imports Ltd v Lineham [1998] 3 ERNZ 976;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 14 |
| PDF File Link: | 2012_NZERA_Wellington_157.pdf [pdf 270 KB] |