| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 552 |
| Hearing date | 6 Aug 2013 |
| Determination date | 03 December 2013 |
| Member | K J Anderson |
| Representation | A Witten-Hannah ; H Burdon |
| Location | Hamilton |
| Parties | Schmidt v McNally Farms Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent alleged applicant neglected duties to farm animals, left farm without authority, fed calves late, failed to carry out normal farm duties, was rude to respondent and drew offensive image on cowshed whiteboard – Whether complaints received from staff about applicant – Warnings prepared but not given to applicant – Whether respondent claimed no reason for dismissal - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Whether applicant entitled to payment in lieu of notice, annual leave, wages for final three days of employment, and payment in lieu of rostered days off – Farm manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent failed to observe statutory requirements. Procedural failures at negative end of scale. More appropriate to address issues through warnings and performance management. Applicant’s employment agreement did not override statutory requirements. Applicant’s behaviour not serious misconduct. Dismissal unjustified. REMEDIES: 20 per cent contributory conduct. Respondent to pay applicant $13,750 reimbursement of lost wages. $12,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant entitled to be paid one month’s wages in lieu of notice. Respondent failed to produce holiday and leave record. Applicant owed eight days annual leave. Applicant entitled to payment in lieu of rostered days off worked. Applicant not paid for final three days of employment. Respondent to pay applicant arrears of wages, quantum to be determined, and arrears of holiday pay, quantum to be determined. |
| Result | Applications granted ; Contributory conduct (20%) ; Reimbursement of lost wages ($13,750) ; Compensation for humiliation etc ($12,000) ; Arrears of wages (quantum to be determined) ; Arrears of holiday pay (quantum to be determined) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s103A(2);ERA s103A(3);ERA s124;ERA s128;ERA s128(2);ERA s128(3);Holidays Act 2003;Holidays Act 2003 s81;Holidays Act 2003 s83(4);Residential Tenancies Act 1986 |
| Cases Cited | Davis Trading Co Ltd v Lewis [1993] 2 ERNZ 272 |
| Number of Pages | 11 |
| PDF File Link: | 2013_NZERA_Auckland_552.pdf [pdf 225 KB] |