| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 106 |
| Hearing date | 26 Mar 2015 |
| Determination date | 10 April 2015 |
| Member | V Campbell |
| Representation | A Foster ; L Tucker |
| Parties | Tuau v Southall |
| Summary | UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably dismissed by respondent - Allegation that applicant assaulted by respondent - Police complaint - COUNTERCLAIM - BREACH OF CONTRACT - Respondent sought damages for applicant's breach of employment agreement (EA") - Whether applicant failed to teat spray cows - COUNTERCLAIM - RECOVERY OF MONIES - Respondent sought recovery of wages and holiday pay overpaid to applicant - Farm manager" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Respondent did not follow steps for conducting disciplinary process set out in EA. Parties engaged in heated exchange. Applicant yelled at respondent but likely applicant's hearing difficulties contributed to raised voice. Applicant's actions likely to have left respondent feeling threatened and unsafe but respondent not in position to know whether applicant's complaint to Police accurate at time decision to dismiss made. Dismissal unjustified. REMEDIES: Applicant attempted to prevent respondent from leaving vat room leading to respondent pushing applicant out of way. 15 per cent contributory conduct. $2,550 compensation appropriate.;COUNTERCLAIM - BREACH OF CONTRACT: No evidence respondent had to have 73 cows culled due to mastitis. Not possible to determine whether high levels of somatic cell count in cows' milk caused by applicant's lacklustre approach to teat spraying rather than other factors. Demerit points received by respondent direct result of mastitis in cows, but respondent took no formal action to enforce instructions and not certain that mastitis caused by lack of teat spraying. No breach of contract.;COUNTERCLAIM - RECOVERY OF MONIES: No overpayment. No recovery of monies. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (15%) ; Compensation for humiliation etc ($2,550) ; Applications dismissed (counterclaim - breach of contract)(counterclaim - recovery of monies) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(5);ERA s174 |
| Cases Cited | Allen v Transpacific Industries Group Ltd (t/as Medismart Ltd) (2009) 6 NZELR 530 (EmpC);Angus v Ports of Auckland Ltd (No 2) [2011] NZEmpC 160, [2011] ERNZ 466 |
| Number of Pages | 12 |
| PDF File Link: | 2015_NZERA_Auckland_106.pdf [pdf 173 KB] |