| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 288 |
| Hearing date | 30 Jun 2014 |
| Determination date | 07 July 2014 |
| Member | T G Tetitaha |
| Representation | N Belton ; R Nabney |
| Location | Tauranga |
| Parties | O'Connor v Dry Dock Co Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent - Whether applicant failed to follow reasonable instruction - Whether applicant provided back-chat when given instruction - Whether applicant's behaviour generally unacceptable - Attitude - Swearing - Yelling - Abuse - Cafe cook |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Clause in employment agreement clear that power to suspend to be exercised only after consultation with applicant. Applicant engaged in yelling and screaming escalating to threatening behaviour towards respondent's director (S"). Would have been reasonable to suspend applicant immediately following incident of threatening behaviour notwithstanding breach of employment agreement but decision to suspend made prior to incident when no imminent danger. Delay in giving applicant suspension decision inexplicable. Respondent required to consult with applicant prior to suspension. Applicant unjustifiably disadvantaged by suspension. S issued instruction applicant not to use new oven and applicant's evidence about use of new oven inexplicable. Refusal to follow instruction and following incidences escalated matter to serious misconduct. Applicant's threatening behaviour reoccurred over three day period. Applicant's conduct serious misconduct. Applicant did not bring respondent into disrepute given evidence respondent self-publicised employment problems. Any defect in respondent not being explicit about threatening nature of applicant's behaviour minor and did not create unfairness to applicant. Applicant's letter raised procedural defects respondent should have considered prior to dismissal decision. No evidence of pre-determination. Process leading to dismissal not fair and reasonable. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. $500 compensation appropriate." |
| Result | Applications granted ; Contributory conduct (50%) ; Compensation for humiliation etc ($500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(5);ERA s124 |
| 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;Graham v Airways Corp of New Zealand Ltd [2005] ERNZ 587;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;New Zealand Institute of Fashion Technology v Aitken [2004] 2 ERNZ 340;Northern Distribution Union v BP Oil NZ Ltd [1992] 3 ERNZ 483 |
| Number of Pages | 15 |
| PDF File Link: | 2014_NZERA_Auckland_288.pdf [pdf 279 KB] |