| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 139 |
| Hearing date | 3-4 Oct 202;9 Apr 2013 |
| Determination date | 06 November 2013 |
| Member | M Ryan |
| Representation | C McGuinness ; S Davies |
| Parties | Bosher v Wellington Combined Taxis Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious misconduct - Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent – Applicant’s employment transferred to respondent – Applicant personally owned shuttle van company (‘TWRT’) and provided services as franchisee to respondent – TWRT owed money to respondent - Respondent sought confirmation of how debt would be addressed – Applicant undertook to increase weekly payments and proposed using loan and tax refund – Applicant unable to secure loan and tax refund did not eventuate – Respondent board discussed lack of performance of applicant to keep debt under control – Disciplinary process commenced – Applicant advised actions constituted theft – Applicant put forward repayment plan - Applicant received final written warning – Respondent accepted proposed repayment plan with conditions – Applicant failed to deliver on repayment plan – Respondent determined applicant lying about intention to make repayments – Applicant dismissed – TWRT subsequently repaid outstanding debt – PENALTY - GOOD FAITH – Applicant sought penalty for respondent’s breach of good faith - Applicant claimed respondent breached good faith by failing to provide relevant information following board meeting - COUNTERCLAIM – BREACH OF CONTRACT – GOOD FAITH - Respondent claimed applicant breached obligations to act in respondent’s best interests and avoid conflicts of interest – Respondent claimed applicant breached good faith - Shuttle manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Authority prohibited publication of Chairman’s Report. Respondent’s decision to take action against applicant premised on assumption applicant misused position. Applicant’s role with respondent had no financial oversight. TWRT received no greater advantage than other shuttle operator. Any purported breach by applicant condoned by respondent. Allegations regarding applicant’s conduct outside work not put to applicant before dismissal. Parties did not discuss context in which discussions about repayment of TWRT debt were being held. Applicant did not “blur the lines” between relationships. TWRT’s debt incurred under commercial arrangement with respondent. Applicant did not formally assume liability for debt. Repayment of debt not term of applicant’s employment. Respondent should have addressed debt through mechanisms of commercial agreement. Not available to respondent to undertake disciplinary action against applicant. No evidence linking TWRT’s failure to repay debt to applicant’s obligations as employee. Unjustified disadvantage claim part of factual matrix leading to dismissal. No unjustified disadvantage. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $12,065 reimbursement of lost wages. $6,000 compensation appropriate.;GOOD FAITH – PENALTY: Respondent genuinely perceived information sought as confidential. No breach of good faith. No penalty.;COUNTERCLAIM – BREACH OF CONTRACT – GOOD FAITH: No breach of contract. No inference applicant deliberately misled respondent. No breach of good faith. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($12,065) ; Compensation for humiliation etc ($6,000) ; Applications dismissed (good faith)(penalty)(counterclaim – breach of contract - good faith); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A – ERA s103A(3) – ERA s124 - ERA s128 – ERA s128(2) – ERA s128(3) - ERA S174 - ERA second schedule cl10(1);Companies Act 1993;Companies Act 1993 s15;Wages Protection Act 1983 |
| Cases Cited | X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 17 |
| PDF File Link: | 2013_NZERA_Wellington_139.pdf [pdf 335 KB] |