| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 274 |
| Hearing date | 6 Oct 2012 |
| Determination date | 14 December 2012 |
| Member | M B Loftus |
| Representation | A Stallard ; S Hornsby-Geluk |
| Location | Nelson |
| Parties | Beloe v Ecolab Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed for serious misconduct during interactions with manager – Authority key considerations applicant failed to take responsibility for own actions and doubts about whether applicant could be managed in future not put to applicant for comment – Found applicant should have been given opportunity to comment on whether penalty less than dismissal appropriate – Found promised meeting to discuss actions to be taken did not occur – Found applicant never had opportunity to address decision-maker directly – Dismissal unjustified – REMEDIES – 30 per cent contributory conduct – Respondent to pay applicant $7,520 reimbursement of lost wages – $752 compensation for loss of superannuation benefit appropriate – $5,600 compensation appropriate – Territory manager |
| Abstract | Applicant employed by respondent as territory manager. Applicant claimed unjustifiably dismissed by respondent. Applicant’s manager (“H”) claimed swore at twice by applicant during conversation. Applicant did not deny incident. H claimed applicant aggressive when refused to undertake work as instructed by H and only performed work following intervention of other manager. Applicant did not deny incident. H’s manager told applicant to support H and not appropriate to swear at H. H claimed swore at by applicant during series of exchanges about applicant’s annual leave balance. Applicant denied swore on one occasion but accepted swore on another. H claimed swore at by applicant on another occasion, applicant unresponsive for rest of day and during meeting at end of day swore at again by applicant who criticised H’s people skills. Applicant claimed specific allegations not entirely true although both exchanges unpleasant and applicant did not deny unresponsive during day. Respondent commenced disciplinary process and applicant suspended. Applicant provided details of specific incidents and respondent stated would be meeting to discuss actions to be taken. Applicant’s written response considered and decision made by respondent’s director (“E”). E considered applicant admitted some alleged conduct, including conduct E considered abusive, and did not deny altercation even where applicant denied swearing. E claimed considered whether lesser penalty than dismissal appropriate, claimed one of E’s chief concerns applicant failed to take responsibility for actions and claimed E had doubts about whether applicant could be managed in future. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: E’s key considerations applicant failed to take responsibility for own actions and doubts about whether applicant could be managed in future not put to applicant for comment. Applicant should have been given opportunity to comment on whether penalty less than dismissal appropriate. Promised meeting to discuss actions to be taken did not occur and respondent failed to follow own process. Applicant never had opportunity to address E directly as decision-maker and opportunity to make written submission not sufficient. Dismissal unjustified. REMEDIES: 30 per cent contributory conduct. Respondent to pay applicant $7,520 reimbursement of lost wages. $752 compensation for loss of superannuation benefit appropriate. $5,600 compensation appropriate. |
| Result | Application granted ; Contributory conduct (30%) ; Reimbursement of lost wages ($7,520.49) ; Compensation for loss of benefit ($752.05)(superannuation) ; Compensation for humiliation etc ($5,600) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s103A;ERA s124;ERA s128(2) |
| Cases Cited | Goodman Fielder New Zealand Ltd v Ali (No 2) [2003] 2 ERNZ 656;Irvines Freightlines Ltd v Cross [1993] 1 ERNZ 424;Nutter v Telecom New Zealand Ltd [2003] 2 ERNZ 234 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Christchurch_274.pdf [pdf 182 KB] |