| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 48 |
| Hearing date | 1 Oct 2014 - 2 Oct 2014 (2 days) |
| Determination date | 16 February 2015 |
| Member | R Arthur |
| Representation | S Mitchell ; R Webster |
| Parties | Webber v Affco New Zealand Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably disadvantaged by harassment and bullying - Applicant claimed unjustifiably dismissed by respondent - Whether applicant threatened and intimidated plant manager (C") - Drug testing - Vehicle search - Swearing - ARREARS OF WAGES - Applicant sought arrears of wages - Whether applicant paid correct overtime rate" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Evidence did not support applicant's conclusions about interactions with production manager (T"). T's role included watching work practices. T's use of slang phrase during meeting not inconsistent with recognised robust environment at meatworks and not abuse directed at applicant. Other reasons existed for applicant's reaction and attitude towards T. T's gesture towards applicant light touch without physical force and demonstrated easy familiarity not inappropriate or intimidating among long serving colleagues. T's actions part of every day work interactions rather than unreasonable treatment or bullying. Defects in investigation into applicant's complaints did not cause unfairness. No unjustified disadvantage. Respondent did not interview important witness to altercation formally. Witness' account accepted uncritically. Light-handed approach taken to inquiry into C's version of events. C was complainant and should not have been involved in decision as to whether CCTV footage revealed anything useful. Applicant not provided with CCTV footage or diagrams drawn by C and witness showing where participants stood during altercation. Applicant not provided with opportunity to provide own diagram. No proper or fair assessment of how other employee's conduct contributed to incident. Clauses in employment agreement did not put onus on applicant to identify alternatives to dismissal. Inadequate consideration given to alternatives to dismissal. Dismissal unjustified. REMEDIES: Applicant unnecessarily provocative and intemperate. 10 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Compensation for loss of superannuation benefit appropriate, quantum to be determined. Leave reserved for parties to return to Authority if unable to quantify lost wages or lost benefit. $5,400 compensation appropriate.;ARREARS OF WAGES: Applicant's supposed acquiescence to overtime rate calculated from earlier base rate equivocal at best. Respondent's evidence about long understood practice of using base rate to calculate overtime did not negate applicant's argument that new, higher, hourly rate agreed to be used for all purposes. No legitimate basis for respondent to calculate overtime pay for applicant using anything other than standard hourly rate agreed with applicant. Respondent to pay applicant arrears of wages, quantum to be determined. Leave reserved for parties to return to Authority if unable to determine quantum." |
| Result | Applications granted (unjustified dismissal)(arrears of wages) ; Contributory conduct (10%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for loss of benefit (quantum to be determined)(superannuation) ; Compensation for humiliation etc ($5,400) ; Arrears of wages (quantum to be determined) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s61(1);ERA s103A;ERA s103A(2);ERA s103A(3)(a);ERA s103A(5);ERA s124;ERA s131;ERA s142;ERA s174 |
| Cases Cited | Harris v The Warehouse Ltd [2014] NZEmpC 188;Honda New Zealand Ltd v New Zealand Boilermakers' etc, Union [1991] 1 NZLR 392 (CA);Lavery v Wellington Area Health Board [1993] 2 ERNZ 31 (EmpC);Morrell v AFFCO New Zealand Ltd [2004] 1 ERNZ 437 (EmpC);New Zealand (with exceptions) Shipwrights etc Union v Honda NZ Ltd [1989] 3 NZILR 82 (LC);New Zealand Meat Workers & Related Trades Union Inc v AFFCO New Zealand Ltd [2010] NZEmpC 62, [2010] ERNZ 139;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC);Timu v Waitemata District Health Board [2007] ERNZ 419 (EmpC);Webber v AFFCO New Zealand Ltd [2014] NZERA Auckland 324 |
| Number of Pages | 30 |
| PDF File Link: | 2015_NZERA_Auckland_48.pdf [pdf 350 KB] |