| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 62 |
| Hearing date | 3 Dec 2013;16 Dec 2013 |
| Determination date | 21 February 2014 |
| Member | T G Tetitaha |
| Representation | L Herzog ; A C Schirnick, S Kopu |
| Location | Auckland |
| Parties | Sergant v Western Mailing Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent – Whether applicant authorised capital expenditure in excess of delegated authorities – Aggressive and argumentative comments to respondent’s Board – Criticism of members of respondent’s Board and families – Whether oral agreement applicant would have similar delegated authorities to respondent’s principal shareholder – Chief executive officer |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Alleged variation to employment agreement not in writing and applicant’s terms and conditions of employment as set out in employment agreement and various written documents. Appropriate for Authority to determine unjustified disadvantage claim even though raised for first time at investigation meeting. Fact applicant told about suspension proposal and respondent considered applicant’s responses not evidence of predetermination. Practical difficulties managing applicant in workplace given position as CEO and little if any alternatives to suspension available. No unjustified disadvantage. Authorisation of capital expenditure of over $46,000 well in excess of applicant’s delegated authorities and serious breach of applicant’s employment agreement. Applicant’s subsequent behaviour at Board meeting less serious misconduct as comments more likely discourteous, unprofessional, disruptive and unbecoming. Applicant’s refusal or neglect to apologise unprofessional. Applicant’s comments in shareholders report discourteous and unprofessional and less serious misconduct. Alleged disrespectful tone of e-mails and pressure from applicant to change terms and conditions of employment not misconduct. Respondent could have concluded applicant’s authorisation of capital expenditure in excess of delegated authorities misconduct capable of justifying dismissal. Unlikely matters resolved prior to disciplinary meeting. Concerns raised with applicant and applicant given opportunity to respond. Concern about whether respondent genuinely considered applicant’s responses given respondent’s principal shareholder complainant and decision-maker. Applicant not initially disciplined for authorisation of capital expenditure and subsequent behaviour would not, of itself, have resulted in dismissal. No consideration of alternatives to dismissal. Dismissal unjustified. REMEDIES: Reinstatement not practicable or reasonable. 50 per cent contributory conduct. $3,500 compensation appropriate. |
| Result | Application granted ; Contributory conduct (50%) ; Compensation for humiliation etc ($3,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s57;ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(5);ERA s124;ERA s125(2);ERA s128(3);ERA s160(3) |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/as Medismart Ltd) (2009) 6 NZELR 530;Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Carter Holt Harvey Ltd v Yukich [2005] ERNZ 300;Finau v Carter Holt Building Supplies [1993] 2 ERNZ 971;Goodfellow v Building Connexion Ltd t/a ITM Building Centre [2010] NZEmpC 82;Graham v Airways Corp of New Zealand Ltd [2005] ERNZ 587;Munro v NS Security Ltd, formerly known as Hibiscus Coast Security Ltd [2012] NZEmpC 38;New Zealand Post Primary Teachers’ Assoc v Secretary for Education [2013] NZERA Auckland 258 |
| Number of Pages | 17 |
| PDF File Link: | 2014_NZERA_Auckland_62.pdf [pdf 333 KB] |