| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 198 |
| Hearing date | 30 Apr 2015 - 1 May 2015 (2 days) |
| Determination date | 30 June 2015 |
| Member | TG Tetitaha |
| Representation | M Tawhara ; D Grindle |
| Location | Auckland |
| Parties | Larkin v Ngati Kahu Social and Health Services Inc. |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably disadvantaged by respondent’s bullying of applicant and unjustifiably dismissed by respondent – GOOD FAITH – Applicant claimed respondent breached statutory duty of good faith under s4A Employment Relations Act 2000 by bullying applicant - Whanau Support Worker |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Employment agreement (“EA”) allowed respondent to ask for medical certificates and contact applicant about return to work. If applicant sent home from work, respondent’s actions justified as allowed to do so if applicant not fit for work. Training not insufficient upon return to work as no issues of competency identified. Respondent’s actions in warning applicant not bullying as employers allowed to warn employees in accordance with workplace code of conduct. Respondent’s failure to give applicant Christmas ham not requirement of EA and applicant not treated disparately as applicant not present when hams given. Respondent’s Chief Executive allowed to talk to applicant about performance issues as part of Chief Executive role. No evidence that respondent allowed staff to discuss dismissal. No unjustified disadvantage. Applicant admitted bad behaviour in falling asleep and failing to participate in exercises, late attendance at meeting and verbally challenging leave refusal. Behaviour not destructive of trust and confidence. Fair and reasonable employer could not have concluded behaviour serious misconduct. Warnings given by respondent defective and did not warn of consequences of failure to improve. Applicant not aware of possibility of dismissal. Applicant given all relevant information, opportunity to seek legal advice and opportunity to comment although applicant did not do so. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $500 compensation appropriate.GOOD FAITH: Respondent did not bully applicant so no breach of good faith. Application dismissed. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (50%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($500) ; Applications dismissed (unjustified disadvantage)(good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4A;ERA s63A;ERA s65(1)(a);ERA s103(1)(b);ERA s103A(2);ERA s103A(3);ERA s103A(5);ERA s124;ERA s128;ERA s149(3) |
| Cases Cited | Allen v TransPacific Industries Group Ltd (t/a Media Smart Ltd) (2009) 6 NZELR 530 (EmpC);Angus v Ports of Auckland Ltd (No 2) [2011] NZEmpC 160, [2011] ERNZ 466;Canterbury Clerical Workers IUOW v Andrews and Beaven Ltd [1983] ACJ 875 (AC);Carter Holt Harvey v Yukich [2005] ERNZ 300 (CA);Corbett v National Mutual Finance Ltd (1992) 5 PRNZ 386 (CA);Eftpos NZ Ltd v Walker [1998] 3 ERNZ 304 (EmpC);Finau v Carter Holt Building Supplies [19993] 2 ERNZ 971 (EmpC);Goodfellow v Building Connexion Ltd t/a ITM Building Centre [2010] NZEmpC 82;Griffith v Sunbeam Corporation Ltd EmpC Wellington WC13/06, 28 July 2006;Hakaraia v Foodstuff (Wellington) Co-operative Society Ltd [2001] ERNZ 105 (EmpC);Isaac v Chief Executive of the Ministry of Social Development ERA Auckland AA200/08, 5 June 2008;Kelly v Accident Rehabilitation & Compensation Insurance Corporation EmpC Wellington WC13/99, 24 March 1999;Kneebone v Schizophrenia Fellowship Waikato Inc ERA Auckland AA31/07, 13 February 2007;Larkin v Ngati Kahu Social and Health Services Inc [2015] NZERA Auckland 82;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311 (EmpC);Marlow v Yorkshire New Zealand Ltd [2000] 1 ERNZ 206 (EmpC);Motor Machinists Ltd v Craig [1996] 2 ERNZ 585 (EmpC);Northern Club Auckland v Northern Hotel etc IUOW [1989] 1 NZILR 764 (LC);BP Oil New Zealand Ltd v Northern Distribution Union [1992] 3 ERNZ 483 (CA);NZ Merchant Service Guild IUOW Inc v NZ Rail Ltd [1991] 2 ERNZ 587 (LC);RNZAF Museum Trust Board v Hunter EmpC Wellington WC11/00, 1 March 2000;Rooney Earthmoving Ltd v McTague [2009] ERNZ 240 (EmpC);Taiapa v Te Runanga O Turanganui A Kiwa t/a Turanga Ararau Private Training Establishment [2012] NZERA Auckland 252;Warwick v Henderson Gallery Ltd v Weston [2006] 2 NZLR 145 (CA);Young v Venables t/a Mt Eden Bakery & Delicatessen EmpC Auckland AC88/00, 7 November 2000 |
| Number of Pages | 21 |
| PDF File Link: | 2015_NZERA_Auckland_198.pdf [pdf 341 KB] |