| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 64 |
| Hearing date | 24-25 Mar 2014 |
| Determination date | 22 April 2014 |
| Member | D Appleton |
| Representation | J Goldstein ; A Reid |
| Location | Christchurch |
| Parties | Kennedy v Advanced Hair Studio Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Information from respondent's client (JW") that applicant sold hairpiece and offered to perform service for JW privately at lower price than charged by respondent - Complaint to Police - Whether applicant admitted taking and servicing clients at applicant's home without passing on income from jobs to respondent - Whether applicant's admissions meant respondent able to dismiss applicant without usual disciplinary process - Pre-prepared letter - PENALTY - GOOD FAITH - Applicant sought penalty for respondent's breach of good faith - COUNTERCLAIM - PENALTY - GOOD FAITH - Respondent sought penalty for applicant's breach of good faith - Hairstylist" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of identity of respondent's clients, including JW. Respondent failed to warn applicant of concerns prior to meeting or specify concerns at meeting. Respondent failed to show applicant documents relied on or disclose source of concerns. No advance warning that meeting could result in dismissal or advice of right to have representative at meeting. No opportunity for applicant to comment on proposed termination of employment. Sole concern of respondent's security advisor was to facilitate Police investigation rather than deal with applicant in accordance with employment law rights. Respondent unable to rely on confession signed by applicant to justify dismissal as not clear what conduct being admitted. Applicant admitted taking adhesive tapes to service clients in own home during meeting. Confession did not obviate need for fair process when obtained in situation of ambush rather than in environment where applicant knew of allegations and consequences of confession clearly in advance. Confession did not occur in course of carrying out procedure other than procedure designed to aid Police investigation. Dismissal unjustified. REMEDIES: 20 per cent contributory conduct. Respondent to pay applicant $4,608 reimbursement of lost wages. Interest payable. $6,000 compensation appropriate.;PENALTY - GOOD FAITH: Deliberate act of deception to fail to advise applicant of concerns and hope to entice applicant into admitting wrongdoing without being warned of consequences. Deception serious as fundamental breach of duty by respondent and sustained as respondent failed to inform applicant of full extent of allegations despite knowing of allegations for month before dismissal. $1,000 penalty appropriate.;COUNTERCLAIM - PENALTY - GOOD FAITH: Applicant attempted to solicit, and carried out private work for, respondent's clients. Solicitation deliberate. Competing with one's employer serious. Actions sustained. $500 penalty appropriate. |
| Result | Applications granted ; Contributory conduct (20%) ; Reimbursement of lost wages ($4,608) ; Interest (5%) ; Compensation for humiliation etc ($6,000) ; Penalty ($1,000)(payable to applicant) ; Counterclaim - penalty ($500)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1);ERA s4A;ERA s103A;ERA s103A(2);ERA s124;ERA s128(2);ERA s128(3);ERA s136(1);ERA s136(2) |
| Cases Cited | Murphy t/a Enzo's Pizza v Van Beek [1998] 2 ERNZ 607 |
| Number of Pages | 19 |
| PDF File Link: | 2014_NZERA_Christchurch_61.pdf [pdf 103 KB] |