| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 132 |
| Hearing date | 13 Aug 2013 |
| Determination date | 21 October 2013 |
| Member | P R Stapp |
| Representation | H White ; J Rooney |
| Location | New Plymouth |
| Parties | Richardson v Fonterra Cooperative Group Ltd |
| Summary | UNJSUTIFIED DISMISSAL - Serious Misconduct - Dismissal unjustified |
| Abstract | Applicant (Mr Richardson) employed by respondent (Fonterra Cooperative Group Ltd) as tanker driver (Manufacturing Sector). Applicant claimed unjustifiably dismissed by respondent. Job application required disclosure of past criminal convictions. Applicant believed not necessary to disclose previous criminal convictions as applicant protected by Criminal Records (Clean Slate) Act 2004 (“Clean Slate Act”). Applicant relied on partner’s information about meaning of Clean Slate Act. Respondent claimed applicant had responsibility to check Ministry of Justice website as indicated on application form. At next stage of recruitment applicant disclosed one speeding ticket but no other convictions. During final interview applicant disclosed some minor historical offences but not all convictions or imprisonment. Applicant was offered and accepted job. Applicant consented to check of criminal records. Letter of appointment unconditional. Applicant assured lead driver on first day applicant disclosed all convictions. Following day respondent received applicant’s Criminal Convictions Record (“CCR”). CCR detailed eight convictions including driving with excess breath alcohol, driving while disqualified and theft as servant. Applicant put on community service, disqualified and imprisoned for convictions. Allegations from respondent that applicant failed to disclose convictions put to applicant. Confirmed at meeting that Clean Slate Act did not apply because of applicant’s imprisonment and details of convictions in CCR. Respondent initially told applicant intention to terminate employment immediately but later said jumped to proposal to terminate too soon. Applicant dismissed after further meeting. Respondent claimed applicant deliberately withheld information. Applicant sought reinstatement.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant’s appointment unconditional in regard to collective agreement and letter of offer. Respondent not entitled to rely on application form that indicated misrepresentation could lead to dismissal after employment accepted. No reference to misrepresentation and consequences in collective agreement or letter of offer. Respondent unable to support claim applicant deliberately misrepresented self. Applicant had genuine belief Clean Slate Act applied. Applicant only started to doubt application after employment started. Applicant relied on partner’s experience and partner genuinely wrong in interpretation of Clean Slate Act. Open for respondent to conclude applicant failed to provide information and refuse to accept applicant’s explanations however allegation of “deliberately” misleading respondent never put to applicant. Respondent relied on misrepresentation to terminate agreement under Contractual Remedies Act 1979 however did not notify applicant of reliance on Act. Respondent not entitled to terminate employment. Dismissal unjustified. REMEDIES: Applicant conceded difficult to return to work. Reinstatement not reasonable or practicable. 25 per cent contributory conduct. Respondent to pay applicant $13,152 reimbursement of lost wages. $5,250 compensation appropriate. |
| Result | Application granted; Contributory conduct (25%); Reimbursement of lost wages ($13,152.75); Compensation for humiliation etc ($5,250); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(3)(a) - ERA s103(3)(d) - Contractual Remedies Act 1979 - Contractual Remedies Act 1979 s5 - Contractual Remedies Act 1979 s7 - Criminal Records (Clean Slate) Act 2004 |
| Cases Cited | Bourne v Carter Holt Harvey Ltd [2011] NZERA Auckland 18;Knedler v Flight Centre (NZ) Ltd [2011] NZERA Christchurch 118;Lidiard v New Zealand Fire Service Commission unreported, P Cheyne, 8 March 2010, CA51/10;Murray v Attorney-General [2002] 1 ERNZ 184;NZ Amalgamated Engineering IUOW v Vehicle Assemblers of New Zealand Ltd (1990) ERNZ Sel Cas 1006; [1990] 3 NZILR 792;Tai v Robinson (t/a Coronation Lodge Rest Home) [2004] 1 ERNZ 270 |
| Number of Pages | 15 |
| PDF File Link: | 2013_NZERA_Wellington_132.pdf [pdf 277 KB] |