| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 74 |
| Hearing date | 26 Feb 2013 |
| Determination date | 01 July 2013 |
| Member | M Ryan |
| Representation | B Kellerman (in person) ; M Nutsford |
| Location | Wellington |
| Parties | Kellerman v Stoneware 91 Ltd t/a Switched on Gardener |
| Summary | UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent - Applicant’s relationship with branch manager deteriorated – Multiple emails from applicant to senior management criticising branch manager – Respondent raised concerns with applicant about undermining branch manager’s authority – Applicant obtained trespass order against branch manager – Meeting convened to resolve disharmony between applicant and branch manager – Whether meeting unlawful – Respondent considered matters resolved – Applicant and branch manager required to provide information restoring relationship – Applicant rejected respondent’s solution – Applicant raised personal grievance – Applicant alleged respondent forged applicant’s fireworks examination - Applicant called to disciplinary meeting – Multiple concerns raised including obtaining of trespass order – Applicant provided written responses - Applicant wore shirt at meeting that stated ‘no comment’ - Applicant dismissed - ARREARS OF WAGES – Applicant sought arrears of wages – Applicant opted out of Kiwisaver – Applicant signed agreement for $14 per hour - Whether applicant promised $15 per hour - Applicant made enquiries to senior management about remuneration – Applicant requested copies of all pay slips – Whether Kiwisaver deductions made – Applicant refused to accept copies of full wage and time records provided at disciplinary meeting - Duty manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Focus of first meeting was to proactively repair relationship between applicant and branch manager. Applicant provided with sufficient information to respond to matters raised by respondent. No evidence respondent forged examination. Applicant purposefully planned to impede progress of disciplinary meeting. Applicant wilfully breached good faith. Termination of applicant’s employment reasonable in circumstances. Respondent provided sufficiently clear summary of concerns prior to meetings. Trespass order should not have been raised at disciplinary meeting. Applicant not dismissed because of trespass order. Respondent entitled to dismiss applicant. Dismissal justified.;ARREARS OF WAGES: No deductions made from pay. No agreement applicant would be paid $15 per hour. Applicant provided with wage and time records on at least three occasions. Applicant’s behaviour with regard to time records obstructive. No arrears of wages. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1) - ERA s103A – ERA s103A(3) - ERA s174;Kiwisaver Act 2006;Protected Disclosures Act 2000;Protected Disclosures Act 2000 s6;Protected Disclosures Act 2000 s6(1)(d);Protected Disclosures Act 2000 s17 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Kellerman v Trade Staff Group Ltd [2012] NZERA Wellington 46;New Zealand Fire Service Commission v Reid [1998] 2 ERNZ 250;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;Reid v New Zealand Fire Service Commission [1999] 1 ERNZ 104;Walker v Porcare Health Ltd [2012] ERNZ 303;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 16 |
| PDF File Link: | 2013_NZERA_Wellington_74.pdf [pdf 333 KB] |