| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 5 |
| Hearing date | 4 Dec 2013 |
| Determination date | 13 January 2014 |
| Member | D Appleton |
| Representation | Dr M Round ; K Dalziel |
| Location | Christchurch |
| Parties | Mutze v Lincoln Supermarket Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by suspension and being required to attend four disciplinary meetings – Applicant claimed unjustifiably dismissed by respondent – Applicant took cake from refuge bin out of sealed packaging and ate cake – Whether applicant ambushed with new allegations at disciplinary meeting that applicant brought respondent into disrepute and ate cereal out of rubbish bin – Whether disparity of treatment – Applicant suspended because of serious breach of health and safety – Applicant resigned before respondent made final decision – Whether respondent pre-determined dismissal by de-activating applicant’s access card and stating relationship of trust and confidence between parties destroyed – Assistant produce manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent did not genuinely believe applicant would commit further serious breaches of health and safety if remained in workplace. Applicant unjustifiably disadvantaged by suspension. Respondent did not know applicant suffered from post-traumatic stress disorder. Applicant not unjustifiably disadvantaged by being required to attend four disciplinary meetings. Applicant admitted eating food taken from refuge bin and conduct justified finding of serious misconduct. Applicant made admission after being told of risk of dismissal. Applicant ought reasonably to have known eating produce from refuge bin viewed by respondent as serious misconduct. Arguable no need to enquire into respondent’s process given applicant’s admission of conduct amounting to serious misconduct. Respondent considered mitigating factors and any dismissal would have been justified. No hard and fast rule requiring employee to be given more than 24 hours’ notice of disciplinary meeting. Respondent’s failure to tell applicant could bring legal representative to disciplinary meeting minor flaw not resulting in applicant being treated unfairly. Applicant not prejudiced by respondent’s failure to forewarn applicant about questions about marking down products and applicant not ambushed by questions about eating waste cereal. Difference in treatment between applicant and other employee not unjustified. No pre-determined decision to dismiss applicant. Dismissal of applicant would have been justified. No constructive dismissal. REMEDIES: No contributory conduct. $500 compensation appropriate. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($500) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s67A;ERA s67B;ERA s103A;ERA s124 |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Murphy t/a Enzo’s Pizza v Van Beek [1998] 2 ERNZ 607;Review Publishing Co Ltd v Walker [1996] 2 ERNZ 407;Wellington, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a Greenwich & Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95;Weston v Advkit Para Legal Services Ltd (2011) 8 NZELR 604 |
| Number of Pages | 20 |
| PDF File Link: | 2014_NZERA_Christchurch_5.pdf [pdf 240 KB] |