| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 10 |
| Hearing date | 29 Oct 2014 - 31 Oct 2014 ; 4 Dec 2014 |
| Determination date | 13 January 2015 |
| Member | TG Tetitaha |
| Representation | R Hauiti (in person) ; A Bennett |
| Location | Rotorua |
| Parties | Hauiti v Te Reo Irirangi O Nga Raukawa Trust t/a Raukawa FM |
| Summary | UNJUSTIFIED DISADVANTAGE - ARREARS OF WAGES - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent - General manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - ARREARS OF WAGES - UNJUSTIFIED DISMISSAL: Authority ordered non-publication of identities of specified former and current employees of respondent and of specified third party. No contractual right to suspend applicant. Significant issues arose when applicant issued trespass notices against three of respondent's directors, posted broadcast to respondent's Facebook page and indicated would not obey instructions from respondent. Disclosure of information to general public by broadcast did not fall under Protected Disclosures Act 2000. Reason to believe applicant's continued presence in workplace would give rise to significant issues. Respondent attempted to consult applicant prior to suspension. Applicant not unjustifiably disadvantaged by paid suspension. Subsequent unpaid suspension breached express term in applicant's employment agreement for payment of wages. Decision to convert paid suspension into unpaid suspension not made for disciplinary reasons. Respondent's financial situation did not justify decision to suspend without pay. Applicant unjustifiably disadvantaged by unpaid suspension. Applicant's dealings with former employee's lawyer unprofessional. Employment of two employees not terminated by applicant. Concerns about management of staff fell under incompetency rather than misconduct. No evidence of incompetent performance being raised previously with applicant. Trespass notices complete overreaction that prevented respondent from accessing own workplace or managing staff or property. Issue of trespass notices amounted to misconduct. Concerns raised and investigated by respondent properly. No reasonable opportunity for applicant to respond given health problems and financial situation caused by unpaid suspension. Dismissal unjustified. REMEDIES: 75 per cent contributory conduct. Respondent to pay applicant $8,076 arrears of wages. $1,250 compensation appropriate. |
| Result | Applications granted ; Contributory conduct (75%) ; Arrears of wages ($8,076.92) ; Compensation for humiliation etc ($1,250) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(2);ERA s103A(3);ERA s103A(5);ERA s124;ERA s128;ERA s131;ERA Second Schedule cl10;Protected Disclosures Act 2000;Protected Disclosures Act 2000 s6;Trespass Act 1980 s11 |
| 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;Goodfellow v Building Connexion Ltd trading as ITM Building Centre [2010] NZEmpC 82;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;NCR (NZ) Corp Ltd v Blowes [2005] ERNZ 932;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;Ramankutty v The Vice-Chancellor of the University of Auckland unreported, Goddard CJ, 25 October 2001, AC53B/01;Singh v Sherildee Holdings Ltd t/a New World Opotiki unreported, Couch J, 22 September 2005, AC53/05;Tropotova v OCS Ltd unreported, J Crichton, 6 August 2010, CA157/10 |
| Number of Pages | 23 |
| PDF File Link: | 2015_NZERA_Auckland_10.pdf [pdf 291 KB] |