| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 194 |
| Hearing date | 15 May 2013 |
| Determination date | 18 September 2013 |
| Member | C Hickey |
| Representation | D Beck ; M Bell |
| Location | Christchurch |
| Parties | Tuhura v Action Plumbing, Gas and Drainage Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Allegation applicant dishonestly used diesel paid for on fuel card for non-work purposes – Whether applicant abusive when refusing to attend meeting – Respondent attempted to retrieve applicant’s truck and fuel card at residence of applicant’s former partner – Applicant and respondent’s managing director (“B”) angry and aggressive towards each other – Shaking of fists – B broke passenger window of applicant’s truck to unlock doors – Police involved – Applicant instructed to return company property but retained company cell phone for 24 hours and made personal calls – Applicant suspended – ARREARS OF WAGES – Applicant sought arrears of wages – Whether respondent entitled to make deduction from applicant’s final wages for tools purchased on applicant’s behalf – Applicant entitled to tool allowance – Whether applicant estopped from claiming entitled to be paid tool allowance directly or that applicant did not owe anything to respondent under tool account – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of costs of personal calls made by applicant on company cell phone after applicant required to return phone – Drainlayer |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: No actual dismissal. No evidence applicant stole diesel from respondent. B’s actions in breaking truck window and demanding return of truck, keys and fuel card breach of implied term of trust and confidence in employment agreement. Matters compounded by Police involvement. B should have foreseen applicant likely to resign as result of B’s behaviour. Instead of investigating allegation against applicant sufficiently, B took serious action to repossess respondent’s property because of suspicions against applicant. Fair and reasonable employer could not have decided to repossess property at any cost. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: 30 per cent contributory conduct. $5,600 compensation appropriate.;ARREARS OF WAGES: Respondent required to amend employment agreement in writing if wanted to retain applicant’s tool allowance rather than pay allowance to applicant directly. Applicant not estopped from claiming respondent unable to make deduction from final pay. Major part of amount deducted from applicant’s wages not for purchase of tools or equipment retained by applicant. Respondent breached employment agreement by not providing written explanation for deduction. Respondent not entitled to make deduction from applicant’s final pay. Respondent to pay applicant $1,147 arrears of wages.;COUNTERCLAIM – RECOVERY OF MONIES: Applicant not entitled to make personal calls on respondent’s cell phone after being constructively dismissed. Applicant to pay respondent recovery of monies, quantum to be determined. Parties to determine whether applicant to repay respondent by deduction from arrears of wages owed to applicant. Leave reserved for parties to return to Authority for ruling. |
| Result | Applications granted ; Contributory conduct (30%) ; Compensation for humiliation etc ($5,600) ; Arrears of wages ($1,147.65) ; Recovery of monies (quantum to be determined) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s103A;ERA s103A(3);ERA s124 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Wellington, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95 |
| Number of Pages | 18 |
| PDF File Link: | 2013_NZERA_Christchurch_194.pdf [pdf 309 KB] |