| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2015] NZERA Wellington 63 |
| Hearing date | 14 Apr 2015 - 29 Apr 2015 (2 days) |
| Determination date | 30 June 2015 |
| Member | M Ryan |
| Representation | P McBride ; D Burton |
| Location | Wellington |
| Parties | Shoshany v 4RF Communications Ltd and Ors |
| Other Parties | Troughton, 4RF Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer - UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Whether applicant misused company credit card - Whether applicant had reasonable basis for alleged misconduct in personal use of company credit - BREACH OF CONTRACT – Applicant sought special damages to cover legal costs incurred due to respondent’s breach of employment agreement (“EA”) – PENALTY – Applicant sought penalty for failure to provide all relevant information and manner of dismissal – Director of Global Systems Engineering |
| Abstract | AUTHORITY FOUND –PRACTICE AND PROCEDURE: Authority ordered non-publication of paragraph containing commercial information relating to respondent. Applicant signed EA with first respondent, but first respondent struck off Companies Register. Second respondent arranged new EA for applicant stating third respondent employer. Unclear whether applicant received new EA. Third respondent paid applicant and had practical control over applicant’s work. Applicant employed by third respondent.UNJUSTIFIED DISMISSAL: Employer’s policy regarding company credit card use unclear and confusing to employees. Applicant had reasonable but mistaken basis for use of card. Third respondent unable to dismiss applicant for behaviour previously condoned without intervening notice of future intolerance of behaviour. Third respondent failed to genuinely consider applicant’s explanation for behaviour. Dismissal unjustified. REMEDIES: No contributory conduct. Reinstatement not reasonable or practicable as applicant’s position disestablished. Third respondent to pay applicant reimbursement of lost wages, quantum to be determined. $10,000 compensation appropriate.BREACH OF CONTRACT: Special damages not available for legal costs as third respondent investigated legitimate claims. No damages.PENALTY: Remedies already awarded for third respondent’s actions. No special facets to justify further punishment. No penalty. |
| Result | Applications granted (practice and procedure)(unjustified dismissal) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($10,000) ; Applications dismissed (breach of contract)(penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3)(d);ERA s125(2);ERA s124;ERA s128(2);ERA s128(3);ERA s174 |
| Cases Cited | Binnie v Pacific Health Ltd [2002] 1 ERNZ 438 (CA);Hall v Dionex Pty Ltd [2015] NZEmpC 29;Harwood v Next Homes [2003] 2 ERNZ 433 (EmpC);Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 19 |
| PDF File Link: | 2015_NZERA_Wellington_63.pdf [pdf 326 KB] |