| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 500 |
| Hearing date | 5-6 Nov 2013 |
| Determination date | 07 November 2013 |
| Member | T G Tetitaha |
| Representation | C T Patterson, A M Halloran ; G Pollock |
| Location | Auckland |
| Parties | Latham v Malcove Distributors Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed - Applicant claimed dismissed due to affair with co-worker but respondent claimed dismissal due to unauthorised purchases - Respondent claimed employment ended by mutual agreement and applicant estopped from bringing claim - Whether applicant received sum in full and final settlement - GOOD FAITH - Applicant claimed respondent breached duty of good faith by failing to be communicative and responsive - Finance administrator |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: No clear promise by applicant. Final settlement letter not signed. Respondent made payment without further correspondence. Applicant not estopped from bringing personal grievance before Authority. Text messages implied applicant considered ending employment. No evidence of motive to dismiss due to affair. Possible inference from applicant of cessation but evidence fell short of certainty of mutual agreement. No mutual agreement. Dismissal unjustified. REMEDIES: Reimbursement of lost wages offset by payment made by respondent at conclusion of employment. 100 per cent contributory conduct.;GOOD FAITH - Insufficient evidence of breach. Application dismissed. |
| Result | Application granted (unjustified dismissal); Contributory conduct (100%); Application dismissed (good faith); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103 - ERA s103A(2) - ERA s103A(3) - ERA s103A(5) - ERA s124 - ERA s128 - ERA s128(2) |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Corbett v National Mutual Finance Ltd (1992) 5 PRNZ 386;Felthouse v Bindley (1862) 142 ER 1037;Goodfellow v Building Connexion Ltd t/a ITM Building Centre [2010] NZEmpC 82;Griffith v Sunbeam Corporation Ltd unreported, Couch J, 28 July 2006, WC13/06;Hamartia v Foodstuffs (Wellington) Co-operative Society Ltd [2001] ERNZ 105;Kelly v Accident Rehabilitation & Compensation Insurance Corporation unreported, Palmer J, 24 March 1999, WC13/99;New Zealand Merchant Service Guild IUOW Inc v New Zealand Rail Ltd [1991] 2 ERNZ 587;RNZAF Museum Trust Board v Hunter unreported, Shaw J, 1 March 2000, WC11/00;Salt v Fell, Governor for Pitcairn, Henderson, Ducie and Oeno Islands [2008] ERNZ 155 ; [2008] 3 NZLR 193;Taiapa v Te Runanga O Turanganui A Kiwa t/a Turanga Ararau Private Training Establishment [2012] NZERA Auckland 252;Young v Venables t/a Mt Eden Bakery & Delicatessen unreported, Shaw J, 7 Nov 2000, AC88/00 |
| Number of Pages | 10 |
| PDF File Link: | 2013_NZERA_Auckland_500.pdf [pdf 291 KB] |