| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 172 |
| Hearing date | 29-Jun-15 |
| Determination date | 12 November 2015 |
| Member | David Appleton |
| Representation | A Oberndorfer ; J Shingleton |
| Location | Christchurch |
| Parties | Wiremu v Levin Bobcats Ltd t/a Core Infrastructure |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – 90 day trial – Drug testing – PENALTY – GOOD FAITH – Applicant sought penalty for breach of good faith - COUNTERCLAIM – PENALTY – GOOD FAITH – Respondent sought penalty for applicant’s breach of employment agreement and good faith - Labourer |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: 90 day trial clause in EA actually probation period clause and did not meet statutory requirements. Respondent failed to carry out sufficient investigation of claims of drug use at work. Respondent failed to raise concerns with applicant, provide all relevant information and give applicant opportunity to respond and have explanation considered. Likely that applicant was using drugs at work, which could have justified summary dismissal if respondent had required applicant to undergo drug test. As respondent failed to do so, in breach of health and safety policy, respondent could not substantively justify dismissal. Dismissal unjustified. REMEDIES: 75 per cent contributory conduct. Respondent to pay applicant $1,285 reimbursement of lost wages. $625 compensation appropriate.;PENALTY – GOOD FAITH: Respondent did not act in bad faith in dismissing applicant as believed it was contractually entitled to do so. No penalty.;COUNTERCLAIM – PENALTY – GOOD FAITH: Applicant already punished for bad conduct and failure to communicate by dismissal. Unjust to award penalty. No penalty. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (75%) ; Reimbursement of lost wages ($1,285) ; Compensation for humiliation etc ($625) ; Applications dismissed (penalty-good faith)(counter claim-penalty – good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s67A;ERA s103A;ERA s124;ERA s160(2) |
| Cases Cited | Waterford Holdings Ltd v Morunga [2015] NZEmpC 132 |
| Number of Pages | 16 |
| PDF File Link: | 2015_NZERA_Christchurch_172.pdf [pdf 207 KB] |