| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2016] NZERA Wellington 30 |
| Hearing date | 4 & 5 Feb 2016 (2 days) |
| Determination date | 10 March 2016 |
| Member | Michael Loftus |
| Representation | P McKenzie-Bridle ; M Smyth |
| Location | Wellington |
| Parties | Akmedov v KH International Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably disadvantaged by workplace harassment and bullying – Applicant claimed unjustifiably dismissed by respondent – COUNTERCLAIM – PENALTY – GOOD FAITH – Respondent sought penalty for applicant’s breach of good faith obligations |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant’s disadvantage claim relied on four specific incidents, three raised out of time. Applicant’s claim about donut throwing incident not continuous and repetitive behaviour to constitute harassment and bullying. No unjustified disadvantage. Respondent effectively dismissed applicant via phone message. Respondent did not mention concerns, applicant had no reasonable opportunity to respond. Dismissal not rescinded by subsequent events. Dismissal unjustified. REMEDIES: No contributory conduct. No reimbursement of lost wages as applicant currently incapable of work. $5,000 compensation for humiliation etc appropriate.;COUNTERCLAIM – PENALTY – GOOD FAITH: Applicant did not act in bad faith when hanging up phone call. Respondent aware subsequent phone call being recorded. No entrapment. No penalty. |
| Result | Application granted (unjustified dismissal) ; Compensation for humiliation etc ($5,000) ; Applications dismissed (unjustified disadvantage)(penalty – good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(5);ERA s114;ERA s114(1);ERA s123;ERA s123(1)(c)(i);ERA s124;ERA s128;ERA s128(2) |
| Cases Cited | Bournemouth University Higher Education Corp v Buckland [2010] ICR 908 (CA);Campbell v Commissioner of Salford School [2015] NZEmpC 122;Hall v Dionex Pty Ltd [2015] NZEmpC 29;Malaysia Airline System BHD (New Zealand) Ltd v Malone [2003] 1 ERNZ 494 (EmpC);Salad Bowl Ltd v Howe-Thornley [2013] NZEmpC 152, [2013] ERNZ 326 |
| Number of Pages | 11 |
| PDF File Link: | 2016_NZERA_Wellington_30.pdf [pdf 187 KB] |