| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 202 |
| Hearing date | 25 - 26 Jun 2013 |
| Determination date | 30 September 2013 |
| Member | C Hickey |
| Representation | H McKinnon ; V Reid |
| Location | Nelson |
| Parties | Radford v Sepclean Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious misconduct - Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent - Applicant claimed respondent misrepresented nature of employment in interview and failed to provide applicant with employment agreement reflecting terms agreed to - Applicant claimed respondent failed to provide job description, unilaterally varied applicant's duties and hired a new employee to replace applicant – Applicant refused to drive truck following oil spill - Council notified of spill - Respondent accused applicant of notifying Council of spill - Applicant claimed respondent swore at applicant and confirmed applicant fired - Respondent asked applicant to return keys - Respondent claimed applicant walked out" - Whether applicant dismissed - Whether 90 day trial period valid - General operator" |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant not mislead about true nature of role. No breach of good faith. Applicant free to negotiate terms of employment. Not mandatory to provide job description. Respondent unilaterally changed duties but applicant continued to work in new role without protest. Applicant possibly disadvantaged by some duties but not unjustifiably so. Insufficient evidence to show employee hired to replace applicant. No unjustified disadvantage. Unusual to ask for return of keys if applicant not dismissed. Respondent did not check whether applicant would return to work. Applicant dismissed. No process followed. No reasonable grounds for finding serious misconduct. 90 day trial clause not valid as agreement not signed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $3,000 compensation appropriate. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($3,000) ; Applications dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4 - ERA s67A – ERA s67B(1) – ERA s67B(2) – ERA s67B(3) – ERA s103(1) - ERA s103(1)(b) - ERA s103(1)(c) - ERA s103(1)(d) - ERA s103(1)(e) - ERA s103(1)(f) - ERA s103(1)(g) – ERA s103A – ERA s103A(3) – ERA s124 - ERA s128(2) - ERA s174 |
| Cases Cited | Connell v Sepclean Ltd [2013] NZERA Christchurch 203;Blackmore v Honick Properties Ltd [2011] ERNZ 445;New Zealand Merchant Service Guild IUOW Inc v New Zealand Rail Ltd [1991] 2 ERNZ 587;Smith v Stokes Valley Pharmacy Limited [2010] ERNZ 253;Griffith v Sunbeam Corporation Ltd unreported, Couch J, 28 July 2006, WC13/06;Van As v Auckland Airport Kiwi Hotel Ltd [2013] NZERA Auckland 73 |
| Number of Pages | 20 |
| PDF File Link: | 2013_NZERA_Christchurch_202.pdf [pdf 247 KB] |