| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 36 |
| Hearing date | 5-Nov-15 |
| Determination date | 30 March 2016 |
| Member | Christine Hickey |
| Representation | J Goldstein ; C Pidduck |
| Location | Christchurch |
| Parties | Sim v South Pacific Meats Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably disadvantaged by suspension – Applicant claimed unjustifiably dismissed by respondent – BREACH OF CONTRACT – Applicant sought damages for respondents’ breaches of individual employment agreement (“IEA”) – PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breach of good faith obligations – Applicant sought penalty for failure to provide safe workplace – Electrician |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent’s decision to suspend before meeting predetermined. Respondent did not consult with applicant or provide reasonable opportunity to respond. No fair process. Applicant disadvantaged by suspension. Respondent did not sufficiently investigate allegations made. Respondent did not adequately put concerns about texts and emails breaching good faith before applicant. Applicant did not have reasonable opportunity to respond to concerns. Respondent’s reasons for dismissal letter misrepresented what applicant said. Applicant’s emails to supervisors could not amount to serious misconduct. Emails did not disclose any confidential information. Dismissal unjustified. REMEDIES: 20 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages (quantum to be determined). $6,800 compensation for humiliation etc appropriate. Interest payable.;BREACH OF CONTRACT: IEA clause did not apply in the circumstances. No breach of contract.;PENALTY – GOOD FAITH: Respondent was not on notice that applicant was suffering from any ongoing health problems. Respondent did not breach duty to provide safe workplace by requiring applicant to work excessively long hours. Respondent breached good faith obligations by suspending applicant without consultation and carrying out flawed disciplinary process. Respondent failed to disclose all information it considered in decision to dismiss. Breaches deliberate and serious. Respondent showed no remorse. $2,000 penalty appropriate. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal)(penalty) ; Contributory conduct (20%) ; Compensation for humiliation etc ($6,800) ; Reimbursement of lost wages (quantum to be determined) ; Interest (5%) ; Penalty ($2,000)(respondent)(payable to Crown) ; Application dismissed (breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b);ERA s4(1A)(c);ERA s4A;ERA s103A;ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s123(1)(c)(i);ERA s124;ERA s174C(3)(b);ERA s174C(4);ERA Second Schedule c11;Judicature (Prescribed Rate of Interest) Order 2011 |
| Cases Cited | Sefo v Sealord Shellfish Ltd [2008] ERNZ 178 (EmpC);Tan v Yang [2014] NZEmpC 65;Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 24 |
| PDF File Link: | 2016_NZERA_Christchurch_36.pdf [pdf 330 KB] |