| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 222 |
| Hearing date | 23 Feb 2015 - 25 Feb 2015 (3 days) |
| Determination date | 28 July 2015 |
| Member | R Arthur |
| Representation | W Reid ; S Grice |
| Location | Auckland |
| Parties | Timoti v Hamill and Anor |
| Other Parties | Te Kura Kaupapa Maori O Otepou Board of Trustees |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – COUNTERCLAIM – BREACH OF CONTRACT – Respondent sought damages for applicant’s failure to use reasonable skill and care in employment – COUNTERCLAIM – PENALTY – GOOD FAITH – Respondent sought penalty for applicant’s breach of good faith – School principal |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISMISSAL: Respondent did not undertake full investigation and failed to explore other explanations for applicant’s conduct, although applicant’s conduct hindered respondent. Respondent acted as key witness and decision-maker in some situations. Applicant did not have full opportunity to comment as not presented with all evidence. Fair and reasonable employer could not have concluded that applicant committed serious misconduct in refusing to obey directive, as evidence suggested directive not as clear as alleged. Fair and reasonable employer could not have concluded applicant deliberately engaged in scheme to gain pecuniary advantage by employing husband as applicant’s conduct appeared to be due to incompetence. Applicant failed to manage conflicts of interest well. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Respondent to pay applicant $10,029 reimbursement of lost wages. $10,000 compensation appropriate.COUNTERCLAIM – BREACH OF CONTRACT : Negligence not enough to justify award of damages, especially as applicant already punished by dismissal. In any case, respondent failed to show loss. No damages.COUNTERCLAIM – PENALTY – GOOD FAITH: Applicant already penalised for behaviour through reduction for contributory conduct. No penalty. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (50%) ; Reimbursement of lost wages ($10,029) ; Compensation for humiliation etc ($10,000) ; Applications dismissed (counterclaim – breach of contract)(counterclaim – penalty – good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3)(b);ERA s103A(3)(c);ERA s124;Education Act 1989 s78M;Education Act 1989 s78Q |
| Cases Cited | Allen v C3 Ltd [2012] ERNZ 478 (EmpC);Complaints Assessment Committee v Beilby NZTDT 2014/53, 9 June 2014;Edwards v Board of Trustees of Bay of Islands College [2015] NZEmpC 6;George v Auckland Council [2013] NZEmpC 179, [2013] ERNZ 675;Hall v Dionex Pty Ltd [2015] NZEmpC 29;Honda NZ Ltd v New Zealand Boilermakers Union [1991] 1 NZLR 392 (CA);Lewis v Howick College Board of Trustees [2010] NZEmpC 4, [2010] ERNZ 1;Lister v Romford Ice & Cold Storage Co Ltd [1957] 1 All ER 125 (HL);New Zealand (with exceptions) Shipwrights etc Union v Honda NZ Ltd [1989] 3 NZILR 82 (LC);PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC);Rainbow Falls Organic Farm Ltd v Rockwell [2014] NZEmpC 136;Sam’s Fukuyama Food Services Ltd v Zhang [2011] NZCA 608, [2011] ERNZ 482 |
| Number of Pages | 31 |
| PDF File Link: | 2015_NZERA_Auckland_222.pdf [pdf 409 KB] |