| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 456 |
| Hearing date | 15 Aug 2014 |
| Determination date | 10 November 2014 |
| Member | TG Tetitaha |
| Representation | TW Underhill (in person) ; L Willson |
| Location | Auckland |
| Parties | Underhill v New Zealand Post Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievances raised within 90 days – Applicant sought leave to raise grievances out of time – UNJUSTIFIED DISMISSAL – Serious Misconduct – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – Absenteeism – Failure to notify respondent of intended absence – Unauthorised absence – Warnings – Postie |
| Abstract | AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE: Applicant raised concerns about various warnings outside 90 day period. Unjustified disadvantage grievance not raised within 90 days. No exceptional circumstances. Leave to raise unjustified disadvantage grievance out of time declined. Unjustified dismissal grievance raised within 90 days.;UNJUSTIFIED DISMISSAL: Applicant attempted to communicate with respondent during absence leading to verbal warning. Respondent attempted to place burden on applicant to communicate more effectively when clear that respondent relied on defective information from ACC about when applicant fit to return to work. Procedure leading to verbal warning defective and did not meet requirements of collective employment agreement (“CEA”). Verbal warning consistent with oral warning administered under CEA provisions for poor performance rather than for unauthorised absence. Even if verbal warning issued for minor misconduct, not made clear to applicant that repeated minor misconduct could lead to dismissal. Applicant’s actions justified engagement of disciplinary process leading to first and final written warnings, and dismissal. Applicant’s acts constituted minor misconduct. Applicant warned for failure to communicate properly rather than absences as stated on warnings. Verbal warning not part of prescribed process for minor misconduct under CEA. Letter inviting applicant to meetings about written warnings did not specify part of CEA relied on to issue warnings. CEA did not support incidences other than repeated minor misconduct, serious misconduct or incompetency being subject to written warnings or dismissal. Warnings defective and should not have been relied on in decision to dismiss. Copy of manager’s statement not given to applicant and statement not reflected accurately in letter to applicant. Letter inviting applicant to meeting did not state clause of CEA being applied. Respondent did not check validity of applicant’s account with manager. Disparity of treatment between applicant and other employees disciplined for unauthorised absences during same period as disciplinary action against applicant. Dismissal unjustified. REMEDIES: Applicant’s unauthorised assistance during post run, unauthorised absences and lying to respondent blameworthy and causative of grievance. 50 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $2,500 compensation appropriate. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (50%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($2,500) ; Application partially granted (raising personal grievance) ; Disbursements in favour of applicant ($71.56)(filing fee) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(5);ERA s114;ERA s114(3);ERA s124;ERA s128;Interpretation Act 1999 s35(6) |
| Cases Cited | Carter Holt Harvey Ltd v Yukich [2005] ERNZ 300;Chief Executive of the Department of Inland Revenue v Buchanan (No 2) [2005] ERNZ 767;Finau v Carter Holt Building Supplies [1993] 2 ERNZ 971;Fuiava v Air New Zealand Ltd [2006] ERNZ 806;Samu v Air New Zealand Ltd [1995] 1 ERNZ 636 |
| Number of Pages | 19 |
| PDF File Link: | 2014_NZERA_Auckland_456.pdf [pdf 344 KB] |