| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 189 |
| Hearing date | 8 - 9 Sept 2015 (2 days) |
| Determination date | 03 December 2015 |
| Member | Helen Doyle |
| Representation | C Gordon ; P Butler |
| Location | Christchurch |
| Parties | Michalewska v Kaizuka Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by warnings given without applicant’s knowledge, suspension, being told of suspension while unwell and respondent’s misrepresentation of nature of disciplinary meeting – Applicant claimed unjustifiably dismissed by respondent – RECOVERY OF MONIES – Applicant sought recovery of medical certificate costs – PENALTY – GOOD FAITH - Applicant sought penalty for respondent’s breach of good faith - Chef |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Suspension not in accordance with process in employment agreement (“EA”). Stressful for applicant to be told of suspension in circumstances. Respondent rejected applicant’s claims of incorrect suspension process and caused further stress. Applicant unjustifiably disadvantaged by suspension. Other disadvantage claims linked to dismissal claim. Respondent did not follow process in EA for raising performance issues. No fair investigation into whether applicant had been given warnings for performance or other issues. Fair and reasonable employer could not have used receipt of warnings as reason to dismiss applicant. Fair and reasonable employer could not have concluded misconduct due to applicant raising concerns about interactions with respondent’s manager. No evidence to conclude that applicant had other business. Even if respondent concluded applicant lying or exaggerating about business ideas, fair and reasonable employer could not conclude serious misconduct. Fair and reasonable employer could not safely conclude applicant deliberately failed to follow instructions. Process used to dismiss applicant flawed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $9,360 reimbursement of lost wages. $19,500 compensation appropriate.RECOVERY OF MONIES: Respondent’s request for further medical certificates somewhat unusual and appeared to be reflective of difficulties in relationship rather than concern about food poisoning. Respondent to pay applicant recovery of monies, quantum to be determined.PENALTY – GOOD FAITH: Respondent’s actions not of egregious nature so as to justify penalty. No penalty. |
| Result | Applications granted (unjustified dismissal)(unjustified disadvantage)(recovery of monies) ; Reimbursement of lost wages ($9,360) ; Compensation for humiliation etc ($19,500) ; Recovery of monies (quantum to be determined) ; Application dismissed (penalty – good faith) Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A(3)(a) ; ERA s103A(3)(b) ; ERA s103A(3)(c) ; ERA s103A(3)(d) ; ERA s124 ; ERA s160(3) |
| Cases Cited | Morris v Christchurch International Airport Ltd [2004] 1 ERNZ 336 (EmpC) ; O’Brien v Xtend-life Natural Products (International) Ltd ERA Christchurch CA45/08, 30 April 2008 |
| Number of Pages | 34 |
| PDF File Link: | 2015_NZERA_Christchurch_189.pdf [pdf 367 KB] |