| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 128 |
| Hearing date | 15 Jul 2014 |
| Determination date | 22 August 2014 |
| Member | D Appleton |
| Representation | G Engelbrecht ; H Burdon |
| Location | Nelson |
| Parties | Morunga v Waterford Holdings Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Whether applicant committed act of cruelty on cow - Applicant issued with trespass notice after aggressive response to notice of disciplinary meeting - Police - PENALTY - Applicant sought penalty for respondent's failure to provide employment agreement (EA") - COUNTERCLAIM - JURISDICTION - Whether Authority had jurisdiction to consider respondent's counterclaim - Respondent sought to recover cost of cleaning and repairing accommodation occupied by applicant during employment and cost of grazing animals left by applicant - Herd manager" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Applicant did not receive EA defining applicant's alleged action as serious misconduct prior to act taking place. However, applicant's alleged action towards cow fell within category of serious misconduct so obvious did not need to be spelt out in advance. Failure to provide EA prior to alleged acts of aggression against cow did not render dismissal unjustified. Failure to provide witness letters to applicant prior to decision to dismiss breach of good faith. Respondent should have waited to see written statement by other employee and provided copy to applicant before making decision to dismiss. Breach of natural justice for applicant not to be given any opportunity whatsoever to pose questions to third party where decision to dismiss relied entirely upon third party's evidence. Issuing of trespass notice based on applicant's angry reaction and did not necessarily demonstrate predetermination. Unusual for respondent's representative to ask applicant during disciplinary process what property applicant had on respondent's premises but, on balance, decision to dismiss not predetermined. No conspiracy to accuse applicant falsely. Respondent's failure to investigate applicant's complaint against other employee would normally constitute unjustified disadvantage but no disadvantage personal grievance raised and not appropriate to consider allegation in context of unjustified dismissal claim given applicant's unwillingness to expand on allegation. Action applicant accused of did take place and respondent had substantive justification for dismissal. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Respondent to pay applicant $5,325 reimbursement of lost wages. $2,500 compensation appropriate.;PENALTY: Obligation to provide copy of intended EA to applicant and advise applicant of right to seek independent advice did not come into force until after applicant's employment commenced. Relevant penalty provision in s 64 Employment Relations Act 2000 did not come into force until after applicant's employment commenced and penalties under ss 64 and 65 only able to be imposed when action brought by Labour Inspector. No penalty.;COUNTERCLAIM - JURISDICTION: Provision of accommodation under terms of employment intended to be service tenancy. Tenancy Tribunal had jurisdiction to consider respondent's counterclaim. No jurisdiction to consider respondent's counterclaim. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (50%) ; Reimbursement of lost wages ($5,325) ; Compensation for humiliation etc ($2,500) ; Applications dismissed (penalty)(counterclaim - jurisdiction) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s4(1A)(c);ERA s63A;ERA s63A(2);ERA s63A(3);ERA s63A(7);ERA s64;ERA s65;ERA s103A;ERA s114;ERA s124;ERA s128;Residential Tenancies Act 1986 s2;Residential Tenancies Act 1986 s77(1);Residential Tenancies Act 1986 s77(2);Residential Tenancies Act 1986 s82(1);Residential Tenancies Act 1986 s83(2) |
| Number of Pages | 21 |
| PDF File Link: | 2014_NZERA_Christchurch_128.pdf [pdf 303 KB] |