| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 13 |
| Hearing date | 18 Oct 2012 |
| Determination date | 21 January 2013 |
| Member | C Hickey |
| Representation | P van Keulen ; C Smith |
| Location | Christchurch |
| Parties | X v Independent Liquor (NZ) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed – Respondent claimed applicant attended function sponsored by respondent grossly intoxicated, was responsible for client’s intoxication and behaviour at function, verbally abused some of respondent’s Indian customers and respondent’s employees, used offensive language and sexually harassed partner of respondent’s customer – Authority found no substantive reason preventing applicant from returning to work following work day and respondent did not comply with natural justice requirements – Applicant unjustifiably disadvantaged by suspension – Found respondent not aware of details of allegations, did not adequately investigate allegations against applicant before deciding applicant would be dismissed and respondent did not put particular allegation to applicant at meeting – Found applicant did not have opportunity to prepare responses before meeting and not told before meeting dismissal possible outcome - Found decision to dismiss applicant not one of fair and reasonable employer and procedural flaws in respondent’s disciplinary process - Dismissal unjustified – REMEDIES - 20 per cent contributory conduct - $4,000 compensation appropriate - $17,664 compensation for loss of benefit appropriate - Respondent to pay applicant $40,453 reimbursement of lost wages |
| Abstract | Applicant employed by respondent. Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed. Applicant attended function sponsored by respondent with other staff and respondent’s customers. Guest of applicant at function (“S”) very intoxicated and removed from function by respondent’s staff. Managers of respondent attending function made several allegations about applicant’s behaviour. Applicant told by respondent’s national sales manager (“W”) had been suspended while respondent investigated serious misconduct allegations. Respondent requested applicant attend meeting but did not give applicant details of allegations. Applicant told at meeting allegations were that applicant grossly intoxicated at function, responsible for S’s intoxication and behaviour, verbally abused some of respondent’s Indian customers, used offensive language and sexually harassed partner of respondent’s customer. Respondent’s decision makers did not speak to sexual harassment complainant as requested by applicant or other complainants. Respondent concluded applicant’s conduct amounted to serious misconduct. Applicant dismissed. Applicant claimed no genuine reason for suspension as allegations related to applicant’s conduct out of work. Applicant not consulted prior to suspension.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: Authority ordered non-publication of applicant’s name or any other identifying information and non-publication of names of third parties. Respondent’s failure to consult with applicant about proposed suspension did not comply with either natural justice or s103A Employment Relations Act 2000. No substantive reason to prevent applicant from returning to work following work day. Applicant unjustifiably disadvantaged by suspension.;UNJUSTIFIED DISMISSAL: Respondent’s decision makers not aware of what applicant alleged to have said to customers or other respondent employees to cause complaints applicant had verbally abused Indian customers and verbally abused other employees. Respondent did not adequately investigate allegations against applicant before deciding applicant would be dismissed and respondent did not put particular allegation to applicant at meeting. As allegations were raised for first time at meeting, applicant did not have opportunity to prepare responses. Respondent did not respond to applicant’s request for more detail of allegations. Applicant not told before meeting dismissal was possible outcome. Respondent did not genuinely consider applicant’s responses to allegations. Applicant did not have opportunity to address all of respondent’s decision makers and respondent’s decision to dismiss coloured by further allegation not put to applicant. Procedural flaws in respondent’s disciplinary process. Decision to dismiss applicant not one of fair and reasonable employer. Dismissal unjustified. No evidence respondent deliberately failed to act in good faith towards applicant in serious and sustained manner. REMEDIES: 20 per cent contributory conduct. $4,000 compensation appropriate. $17,664 compensation for loss of benefit appropriate. Respondent to pay applicant $40,453 reimbursement of lost wages. |
| Result | Applications granted ; Contributory conduct (20%) ; Compensation for humiliation etc ($4,000) ; Compensation for loss of benefit (bonuses) ($17,664.80) ; Reimbursement of lost wages ($40,453.90) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(4);ERA s124;ERA s128(2);ERA s128(3);ERA Second Schedule cl10 |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Irvines Freightlines Ltd v Cross [1993] 1 ERNZ 424;Tawhiwhirangi v Attorney-General [1993] 2 ERNZ 546 |
| Number of Pages | 21 |
| PDF File Link: | 2013_NZERA_Christchurch_13.pdf [pdf 246 KB] |