| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 36 |
| Hearing date | 27 Sep 2012 |
| Determination date | 31 January 2013 |
| Member | K J Anderson |
| Representation | S Franklin ; L Eshkehsou |
| Location | Whakatane |
| Parties | Homan v The Persian Princess Ltd t/a The Fig |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed as had received complaints about applicant’s attitude, had discovered applicant smoking cannabis at workplace and applicant damaged respondent’s property - Authority found respondent kitchen manager tacitly accepted applicant smoking cannabis during working hours – Found applicant sent home from workplace because of conduct – Found applicant’s actions fundamentally proven to have been of substantial detriment to respondent’s operation – Found respondent failed to observe requirements of s103A(3) Employment Relations Act 2000 therefore bound to find applicant’s dismissal unjustified - Dismissal unjustified - REMEDIES - 75 per cent contributory conduct - Found based on applicant’s attitude and conduct, only minimal award of $2,000 compensation appropriate - Reimbursement of lost wages not appropriate – COUNTERCLAIM - GOOD FAITH – PENALTY - Respondent claimed applicant breached good faith obligations and sought penalty – Found some of applicant’s actions not those of employee acting in good faith but not sufficient evidence applicant created loss of income, closed restaurant early or trained competitor - Counterclaims dismissed – Caf� Assistant and Barista. |
| Abstract | Applicant employed by respondent as caf� assistant and barista. Applicant claimed unjustifiably dismissed by respondent. Respondent claimed applicant justifiably dismissed, claimed applicant had breached good faith obligations and sought penalty. Respondent managing director (“E”) claimed shortly after applicant’s employment commenced had concerns about applicant’s attitude towards colleagues and respondent’s customers. E claimed applicant “almost hostile,” received frequent complaints about applicant’s attitude and applicant’s behaviour in kitchen unacceptable as applicant threw equipment around and broke dishes. E claimed discussed concerns with applicant many times. E claimed told by customers applicant had closed restaurant early and customers told kitchen closed without respondent’s authority. Respondent kitchen manager (“T”) claimed had discovered applicant smoking cannabis in respondent’s courtyard during working hours. T claimed also spoke to applicant many times about applicant’s behaviour and applicant punched walls, kicked doors and had been “slamming” respondent’s dishwasher and coffeemaker. T claimed applicant’s behaviour escalated after raised concerns with applicant. Respondent employee (“C”) claimed applicant cursed when customers arrived and threw dishes down and customers aware of applicant’s behaviour. C claimed continuously apologised to customers for applicant’s poor service and customer numbers dropped dramatically. Applicant sent home from workplace after applicant broke respondent’s dishes. E sent applicant text message three days later that applicant not required to work following day and would be paid final pay. Respondent gave applicant letter stating applicant’s services no longer required as applicant had continued to behave in “unsatisfactory manner.”;AUTHORITY FOUND:;UNJUSTIFIED DISMISSAL: T tacitly accepted applicant and another of respondent’s employees smoking cannabis during working hours. Applicant sent home from workplace because of conduct. Evidence of effect of applicant’s behaviour on respondent’s business inconclusive. Applicant’s actions fundamentally proven to have been of substantial detriment to respondent’s operation. Respondent failed to observe requirements of s103A(3) Employment Relations Act 2000 therefore bound to find applicant’s dismissal unjustified. Respondent’s actions not those of fair and reasonable employer. Dismissal unjustified. REMEDIES: 75 per cent contributory conduct. Based on applicant’s attitude and conduct, only minimal award of $2,000 compensation appropriate. Reimbursement of lost wages not appropriate.;COUNTERCLAIM - GOOD FAITH - PENALTY: Some of applicant’s actions not those of employee acting in good faith but not sufficient evidence applicant created loss of income, closed restaurant early or trained competitor. Counterclaims dismissed. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (75%) ; Compensation for humiliation etc ($500) ; Applications dismissed (counterclaims)(good faith and penalty) ; Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(2);ERA s103A(3);ERA s124 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/a “Medismart Ltd”) [2009] 6 NZELR 530;Radius Residential Care Ltd v McLeay [2010] ERNZ 371 |
| Number of Pages | 8 |
| PDF File Link: | 2013_NZERA_Auckland_36.pdf [pdf 167 KB] |