| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 133 |
| Hearing date | 17-Aug-15 |
| Determination date | 11 September 2015 |
| Member | David Appleton |
| Representation | C Hicks (in person) ; J Farrow |
| Location | Christchurch |
| Parties | Hicks v Aotea Electric Canterbury Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent – Disparity of treatment - PENALTY – Applicant sought penalty for respondent’s breach of employment agreement (“EA”) by failing to provide opportunity to comment on suspension – Supervisor |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant treated differently from other employee with similar position who acted similarly badly. Applicant had position of seniority over other employee and had ultimate responsibility for ensuring work carried out properly. Adequate explanation for disparity of treatment. Respondent originally treated problems as performance issues, but later became appropriate to treat it as misconduct after applicant’s failure to follow reasonable instructions. Respondent carried out proper investigation, raised concerns, gave applicant reasonable opportunity to respond and genuinely considered applicant’s explanation. Dismissal justified. When suspending applicant, respondent failed to provide opportunity to make comments and have comments considered before making decision, in breach of EA. Unjustified disadvantage. REMEDIES: Applicant failed to provide evidence as to hurt and humiliation caused by suspension, so no compensation appropriate.;PENALTY: Respondent’s breach of EA did not cause significant harm and was not deliberate, although not wholly inexcusable. Failure to abide by obligation to consult should be punished. $750 penalty appropriate. |
| Result | Applications granted (unjustified disadvantage)(penalty) ; Penalty ($750)(payable to applicant) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s134;ERA s136(2) |
| Cases Cited | Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767 (CA);Fuel Espresso v Hsieh [2007] NZCA 58, [2007] 2 NZLR 651;Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 29 |
| PDF File Link: | 2015_NZERA_Christchurch_133.pdf [pdf 369 KB] |