| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 141 |
| Hearing date | 10 Dec 2012 - 11 Dec 2012 (2 days) |
| Determination date | 10 July 2013 |
| Member | C Hickey |
| Representation | G Lloyd ; R Harrison |
| Location | Christchurch |
| Parties | Manuera v Amcor Packaging (New Zealand) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct - Applicant claimed unjustifiably dismissed by respondent - Applicant failed to load all pallets onto truck – Not all pallets stacked at designated place – Applicant consciously decided to leave remaining pallets – Applicant dismissed - PRACTICE AND PROCEDURE - Whether respondent bound by settlement agreement to reinstate applicant – Respondent indicated applicant would be reinstated if apology made – Applicant apologised – Respondent claimed reinstatement subject to suitable role being available – Whether applicant became employee – Whether applicant dismissed second time - Respondent claimed no vacant position – GOOD FAITH – Applicant claimed respondent breached good faith – Applicant failed to comply with undertaking to discuss future suitable opportunities - Dispatch forklift operator |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant only instructed to load pallets stacked in designated place. No serious misconduct. Respondent did not deal with applicant in line with house rules. Dismissal not fair or reasonable. Respondent never suggested applicant’s behaviour amounted to refusal to follow lawful instruction. Decision on serious misconduct made before applicant advised to bring representative. Dismissal unjustified. REMEDIES: 50% contributory conduct. Respondent to pay applicant $3,776 reimbursement of lost wages. $2,000 compensation appropriate.;PRACTICE AND PROCEDURE: Respondent never intended to create role. Actual position not discussed. Respondent did not have suitable vacancy for applicant. Lack of certainty about terms. No settlement agreement. Applicant did not become employee.;GOOD FAITH: Good faith does not survive termination of employment. No breach of good faith. |
| Result | Application granted (unjustified dismissal) ; Applications dismissed (practice and procedure)(good faith) ; Contributory conduct (50%) ; Reimbursement of lost wages ($3,776.50) ; Compensation for humiliation etc ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A) - ERA s6(1)(b)(ii) – ERA s103A – ERA s124 – ERA s128(2) – ERA s128(3) |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415 |
| Number of Pages | 16 |
| PDF File Link: | 2013_NZERA_Christchurch_141.pdf [pdf 282 KB] |