| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 139 |
| Hearing date | 15 Apr 2013 |
| Determination date | 23 April 2013 |
| Member | R Larmer |
| Representation | S Austin ; M MacPhail |
| Location | Tauranga |
| Parties | Curtis v RS Construction Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Authority found applicant’s comment to respondent to lose attitude and calm down rude and disrespectful but not serious misconduct – Found respondent changing informal onsite discussion with applicant into disciplinary meeting unfair and unjustified - Found misunderstandings that arose in meeting between parties would not have occurred if respondent complied with statutory good faith obligations – Dismissal unjustified – REMEDIES - Respondent to pay applicant $1,420 reimbursement of lost wages – 20 per cent contributory conduct - $3,200 compensation appropriate – Driller |
| Abstract | Applicant employed by respondent as driller. Applicant claimed unjustifiably dismissed by respondent. Respondent instructed applicant to move building materials and rejected applicant’s suggested location. Material ultimately moved to applicant’s suggested location prompting comment from applicant which respondent claimed indicated applicant laughing at respondent. Respondent instructed applicant to get keys and move work equipment to next worksite. Applicant claimed informed respondent already had keys and claimed respondent replied “just do it” in raised voice. Applicant told respondent to lose attitude and calm down which applicant claimed said in laughing tone. Respondent claimed applicant’s comment insubordination. After short break respondent met with applicant to discuss incident. Respondent claimed applicant would not focus on applicant’s behaviour but on location of keys. Respondent claimed put applicant on notice at meeting that if did not change attitude problems and insubordinate behaviour applicant’s employment at risk. Applicant dismissed. Respondent claimed applicant had two previous warnings.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Understandable applicant focused on location of keys during meeting as last communication between parties about location of keys. Incidents respondent claimed were prior warnings not warnings, as one incident was verbal instruction from respondent to applicant about manner in which work activity undertaken, and other incident written note by respondent following informal performance review. Applicant’s comment to respondent to lose attitude and calm down rude and disrespectful but not serious misconduct as not serious enough to undermine trust and confidence inherent in employment relationship. Respondent changing informal onsite discussion with applicant into disciplinary meeting unfair and unjustified. Respondent did not provide applicant allegations to respond to, inform applicant summary dismissal possible outcome, give applicant time to prepare response, or offer applicant opportunity to be accompanied by support person. Respondent’s claim impractical to hold disciplinary meeting due to nature of business unacceptable. Misunderstandings in meeting between parties would not have occurred if respondent complied with statutory good faith obligations. Dismissal unjustified. REMEDIES: Respondent to pay applicant $1,420 reimbursement of lost wages. 20 per cent contributory conduct. $3,200 compensation appropriate. |
| Result | Application granted ; Reimbursement of lost wages ($1,420) ; Contributory conduct (20%) ; Compensation for humiliation etc ($3,200) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A;ERA s103A(3);ERA s124;ERA s128(2) |
| Number of Pages | 8 |
| PDF File Link: | 2013_NZERA_Auckland_139.pdf [pdf 221 KB] |