| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 132 |
| Hearing date | 27 - 28 Nov 2012 |
| Determination date | 17 April 2013 |
| Member | T G Tetitaha |
| Representation | G D Bennett ; E J Butcher |
| Location | Auckland |
| Parties | Fredatovich v Treasury Wine Estates (NZ) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged by respondent’s failure to carry out fair and reasonable investigation and consider previous practice at trade shows - Authority found formal policies may not have prevented applicant’s conduct – Found applicant had obligation to deal with respondent’s cash and stock appropriately – Found applicant’s conduct gross negligence capable of being serious misconduct - Found respondent’s failure to take statements from employees did not prevent applicant addressing issue of serious misconduct arising from cash handling - Found respondent raised possibility of dismissal with applicant and gave applicant opportunity to respond – Found no pre-determination by respondent – No unjustified disadvantage – Dismissal justified - Executive Assistant and Events Manager |
| Abstract | Applicant employed by respondent as executive assistant and events manager. Applicant claimed unjustifiably disadvantaged by respondent’s failure to carry out fair and reasonable investigation and consider previous practice at trade shows and unjustifiably dismissed by respondent. Applicant ran respondent’s stall at two trade shows. At both shows applicant made no record of bottles sold or used. After first show applicant claimed took coinage to local bank to exchange for notes but did not obtain record of transaction. Applicant claimed took cash to home then work and left in locked cupboard. Respondent claimed $7,865 cash shortfall and met with applicant to discuss shortfall and applicant’s cash and stock management. No cash present in work cupboard and applicant gave respondent $3,950 from home rather than $3,000 as applicant originally indicated had at home. Applicant claimed 30 cases of wine given to regional manager (“D”) and sales representative (“F”) after first show. Applicant disputed respondent’s estimate of cases used at second show. Applicant claimed not previously required to account for cash and stock as shows regarded as marketing rather than money making opportunities. Respondent wrote to applicant outlining reasons for proposal to dismiss applicant. Respondent claimed D did not attend first show and F said only nine cases of wines returned. Respondent reiterated estimate of cases used at second show. Respondent claimed unable to verify bank applicant claimed visited. Respondent claimed applicant acted unusually in saying had no keys for work cupboard and in claiming $3,000 found at home but returning $3,950. Respondent claimed discrepancy in cash and serious neglect of duties by applicant. Respondent claimed considered issuing applicant with warning but damage to trust between parties. Respondent gave applicant opportunity to reply to letter. Applicant dismissed. Applicant claimed respondent failed to provide statements gathered and respondent lacked cash handling and stock management policies. Applicant claimed respondent provided false information regarding interview of applicant’s partner (“J”). Applicant claimed no mention of dismissal until respondent wrote to applicant. Applicant claimed dismissal pre-determined.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Performance reviews did not detect applicant’s conduct and policies and practices regarding cash handling and stock management may not have prevented applicant’s conduct. Applicant had limited experience in events management and made false statement in obtaining bar manager’s licence. Common sense should have led applicant to bank or secure large amounts of cash. Applicant’s decision to exchange coinage for notes rather than deposit in respondent’s account illogical. Although emphasis of events management role marketing rather than sales applicant had obligation to deal with respondent’s cash and stock appropriately. Applicant’s conduct gross negligence capable of being serious misconduct. Identifying bank where applicant claimed exchanged coinage for notes would not have impacted on question of serious misconduct and would have only confirmed applicant not dishonest and no finding of dishonesty by respondent. Respondent’s failure to take statements from employees did not prevent applicant addressing issue of serious misconduct arising from cash handling. Applicant able to respond to alleged discrepancies in stock and cash. Respondent providing applicant with disciplinary meeting notes would have had little effect upon applicant’s response to allegations. Respondent interviewing J would not have influenced outcome. Respondent raised possibility of dismissal with applicant and gave applicant opportunity to respond. Respondent did not pre-determine dismissal as provision of information requested would not have changed outcome and respondent entitled to change mind on penalty from warning to dismissal. No unjustified disadvantage. Dismissal justified. |
| Result | Applications dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(2);ERA s103A(3);ERA s103A(5) |
| Cases Cited | Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 ; [2001] 3 NZLR 29 |
| Number of Pages | 13 |
| PDF File Link: | 2013_NZERA_Auckland_132.pdf [pdf 203 KB] |