| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 501 |
| Hearing date | 9 Oct 2013 |
| Determination date | 07 November 2013 |
| Member | E Robinson |
| Representation | E Miles ; R Alchin |
| Location | Hamilton |
| Parties | Wharewhiti v Western Plumbing and Roofing Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Client discovered incomplete paint job, damaged property and threat written in dust on mirror on site where applicant working - Applicant received text from manager terminating employment followed by letter of suspension - Applicant erased computer software from two mobile devices belonging to respondent - Applicant claimed not provided with employment agreement and provided graphologist report in evidence |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Communication from respondent to applicant had effect of destroying trust and confidence between parties and terminating relationship. Reasonable for applicant to believe manager had authority to terminate applicant’s employment. Respondent breached duty of good faith when failed to provide applicant access to information regarding decision to suspend or opportunity to comment. Applicant understood employment already terminated when received letter of suspension and invited to disciplinary meeting. Applicant deleted information from respondent’s computer system after sent text message terminating employment and applicant’s actions did not affect decision to terminate. Respondent did not comply with tenets of natural justice or statutory good faith obligations and decision to terminate not that of fair and reasonable employer. Respondent provided applicant with employment agreement. Dismissal unjustified. REMEDIES: 90 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages and holiday pay, quantum to be determined. $400 compensation appropriate. |
| Result | Application granted ; Contributory conduct (90%) ; Reimbursement of lost wages and holiday pay (quantum to be determined) ; Compensation for humiliation etc ($400) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s64;ERA s103A;ERA s103A(3);ERA s124 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/aMedismart Ltd) (2009) 6 NZELR 530;Nelson v Porirua Community Law Resource Centre Inc [1993] 2 ERNZ 1109;Tawhiwhirangi v Attorney-General in respect of Chief Executive, Department of Justice [1993] 2 ERNZ 546;Waitakere City Council v Ioane [2004] 2 ERNZ 194" |
| Number of Pages | 17 |
| PDF File Link: | 2013_NZERA_Auckland_501.pdf [pdf 232 KB] |