| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 288 |
| Hearing date | 7 May 2015 - 8 May 2015 (2 days) |
| Determination date | 21 September 2015 |
| Member | Robin Arthur |
| Representation | E Miles ; R Upton |
| Location | Hamilton |
| Parties | Halwala v Mighty River Power Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Applicant claimed unjustifiably disadvantaged by respondent’s actions - Whether improper use of company phone, driving company vehicle while fatigued and unauthorised leave - Whether applicant’s conduct amounted to serious misconduct - COUNTERCLAIM - BREACH OF CONTRACT - Respondent sought damages for costs incurred through applicant’s use of company phone by accruing high international data roaming costs - Phone use contrary to acceptable use policy - COUNTERCLAIM - RECOVERY OF MONIES - Respondent sought recovery of relocation costs if employment relationship ended |
| Abstract | AUTHORITY FOUND -UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Respondent had sufficient resources to investigate. Concerns respondent did not provide applicant with relevant information about data use on phone. Respondent did not put all concerns resulting in dismissal to applicant. Applicant did not have opportunity to seek advice or representation. Procedural defects not minor and resulted in unfair treatment. Respondent’s disciplinary process procedurally unfair. Driving company vehicle while fatigued was single instance of negligence. Applicant was ignorant of mobile data use through ‘background syncing’. In isolation these two incidents not serious misconduct. However, deliberately taking unauthorised leave despite having opportunity to contact respondent was serious misconduct. Procedural unfairness would not have altered substantive outcome. Dismissal justified. Applicant unjustifiably disadvantaged by procedural unfairness during respondent’s disciplinary process. REMEDIES: 40 per cent contributory conduct. $6,000 compensation appropriate.COUNTERCLAIM - BREACH OF CONTRACT - Applicant’s phone charges resulted from carelessness and ignorance rather than deliberate act - Dismissal already punished applicant’s overall negligence - Awarding damages would have chilling effect on dismissed employees pursuing personal grievances. No damages.COUNTERCLAIM - RECOVERY OF MONIES - Inequitable for respondent to rely on term in employment agreement which applied in event of employment ending when respondent initiated termination of employment relationship - Possible that term amounted to penalty and thus unenforceable. No recovery of monies. |
| Result | Application granted (unjustified disadvantage) ; Contributory conduct (40%) ; Compensation for humiliation etc ($10,000) ; Applications dismissed (breach of contract) (recovery of monies) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c) - ERA s103A - ERA s103A(3) - ERA s103A(4) - ERA s103A(5) - ERA s122 - ERA s124 - ERA s174E - ERA s174C(4) - ERA s174C(3)(b) - ERA Second Schedule cl10 - ERA Third Schedule cl12 |
| Cases Cited | Angel v Fonterra Co-operative Group [2006] ERNZ 1080 (EmpC)Angus v Ports of Auckland [2011] NZEmpC 160, [2011] ERNZ 466Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767 (CA)Fagotti v Acme & Co Ltd [2015] NZEmpC 135George v Auckland Council [2013] NZEmpC 179, [2013] ERNZ 675George v Auckland Council [2014] NZCA 209, [2014] ERNZ 72Hall v Dionex Pty Ltd [2015] NZEmpC 29H v A Ltd [2014] NZEmpC 92, [2014] ERNZ 38Howard v Carter Holt Harvey Packaging Ltd [2014] NZEmpC 157, (2014) 12 NZELR 374Kaipara v Carter Holt Harvey [2012] NZEmpC 40, (2012) 9 NZELR 545Lister v Romford Ice & Cold Storage Co Ltd [1957] 1 All ERA 125Makatoa v Restaruant Brands (NZ) Ltd [1999] 2 ERNZ 311 (EmpC) |
| Number of Pages | 28 |
| PDF File Link: | 2015_NZERA_Auckland_288.pdf [pdf 419 KB] |