| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 58 |
| Hearing date | 19 Feb 2014 - 27 Mar 2014 (2 days) |
| Determination date | 10 April 2014 |
| Member | D Appleton |
| Representation | A Sharma ; D Gavin |
| Location | Nelson |
| Parties | Brown v Adams t/a Untouchable Hair and Skin |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably disadvantaged by suspension and respondent's failure to investigate allegation applicant bullied by fellow employee (X") - Applicant claimed unjustifiably dismissed by respondent - Whether applicant sworn at and threatened by X - Client complaints - Whether applicant given opportunity to resign or be dismissed - Whether applicant stole hair treatments for aunt's hair - Whether applicant stole treatments for own hair - RECOVERY OF MONIES - Applicant sought recovery of training fees - Bonding agreement - Fees paid by applicant's mother - PENALTY - Applicant sought penalty for respondent's failure to provide employment agreement and breach of good faith - Whether respondent intended to dismiss applicant to allow other person to take applicant's job - Apprentice hairdresser" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Authority ordered non-publication of X's identity. Applicant's complaints about bullying by X not raised sufficiently clearly until applicant complained of threat from X at meeting. Respondent prejudged applicant's concerns. Fair and reasonable employer would have held full investigation before deciding whether applicant's complaint could be trusted and would have separated applicant's complaint from disciplinary process. Applicant unjustifiably disadvantaged by respondent's failure to investigate applicant's complaint about bullying by X. No consultation about suspension but relationship between parties had broken down and not practical for applicant to continue working at salon while respondent believed applicant dishonest. Applicant not unjustifiably disadvantaged by suspension. Applicant not warned that meeting disciplinary in nature or that applicant could be dismissed. Applicant not told of allegation applicant applied treatment to aunt's hair without charge. Warning letter handed to applicant at meeting without prior disciplinary process. Applicant understood any product could be used on relative's hair for certain price and treatments used on staff members' hair free. Respondent failed to investigate applicant's understanding of policy regarding use of treatments on relatives or staff. Allegation applicant used treatment on own hair without payment not addressed with applicant directly Respondent jumped to conclusion applicant lied. Not fair to raise historical examples of complaints and poor performance during investigation of specific misconduct. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $10,046 reimbursement of lost wages. Interest payable. $2,500 compensation appropriate for unjustified disadvantage and $7,500 compensation appropriate for unjustified dismissal.;RECOVERY OF MONIES: No requirement in bonding agreement invoices must be received by certain time to be paid by respondent. Applicant did not remain employed by respondent for required period after training completed because applicant dismissed unjustifiably. No loss to applicant as fees paid by applicant's mother but applicant stated intention to pay mother back and Authority had obligation to make determination based on substantial merits of case. Respondent to pay applicant $551 recovery of monies.;PENALTY: Employment agreement given to senior staff member but not passed on to applicant. No intention to deprive applicant of employment agreement. Respondent did not set out to deliberately force applicant out of employment. No penalty. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal)(recovery of monies) ; Reimbursement of lost wages ($10,046.40) ; Interest (5%) ; Compensation for humiliation etc ($10,000) ; Recovery of monies ($551.90) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4A(b)(iii);ERA s103A;ERA s124;ERA s128(2);ERA s128(3);ERA s157;ERA s157(1);ERA s162 |
| Number of Pages | 26 |
| PDF File Link: | 2014_NZERA_Christchurch_58.pdf [pdf 504 KB] |