| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 26 |
| Hearing date | 23 Jan 2013 |
| Determination date | 18 March 2013 |
| Member | P R Stapp |
| Representation | J McDowell ; D Robb |
| Location | Napier |
| Parties | Hunt v Gemco Electrical Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found fair and reasonable employer could not determine what was threatening about applicant’s behaviour leading to applicant’s dismissal as no specific detail given and reliance on one witness - Found respondent failed to inform applicant had concluded lost trust and confidence in applicant - Found even on respondent’s findings applicant’s actions did not put respondent’s reputation at risk - Found respondent failed to tell applicant considering dismissal and gave applicant no opportunity for input in disciplinary setting - Dismissal unjustified – REMEDIES – 50 per cent contributory conduct - Respondent to pay applicant $1,590 reimbursement of lost wages - $1,000 compensation appropriate |
| Abstract | Applicant claimed unjustifiably dismissed by respondent. Written complaint made to respondent about applicant speeding in vehicle into respondent’s workplace. Complainant (“S”) claimed applicant aggressive and threatening after parking car with members of public present. General manager (“J”) conducted investigation. J met with applicant to discuss complaint and read details of complaint to applicant. After meeting J contacted S for further information and made decision to dismiss applicant. Applicant dismissed at following meeting for breach of trust and confidence. Respondent accepted incident alone did not justify dismissal but applicant on final written warning for absenteeism and previously documented non-performance issues. J claimed preferred S’s version of events leading to dismissal as S had no personal reason to complain about applicant and applicant had previous work and performance issues of which S unaware;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Fair and reasonable employer could rely on S’s complaint and conclude applicant involved in speeding incident. Fair and reasonable employer could not determine what was aggressive and threatening about applicant’s behaviour as no specific detail given by S, no other witnesses relied upon and applicant went inside building. Three prior warnings expired and related to performance matters, final written warning related to different form of misconduct and warnings could not be basis for concluding applicant not telling truth. J failed to inform applicant had concluded lost trust and confidence in applicant. Even on respondent’s findings applicant’s actions did not put respondent’s reputation at risk as S did not initially know who involved, asked only for respondent to have ‘quiet chat’ with applicant and not enough information to clarify applicant’s threatening behaviour. Respondent failed to tell applicant considering dismissal and gave applicant no opportunity for input into options other than dismissal. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Respondent to pay applicant $1,590 reimbursement of lost wages. $1,000 compensation appropriate. |
| Result | Application granted; Contributory conduct (50%); Reimbursement of lost wages ($1,590.50); Compensation for humiliation etc ($1,000); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Number of Pages | 10 |
| PDF File Link: | 2013_NZERA_Wellington_26.pdf [pdf 240 KB] |