| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 114 |
| Hearing date | 7 & 8 April 2016 (2 days) |
| Determination date | 15 April 2016 |
| Member | Eleanor Robinson |
| Representation | B Nalder ; K Taurau |
| Location | Whangarei |
| Parties | Rush v JSB Construction Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Abandonment – Applicant claimed unjustifiably dismissed by respondent – Whether subsequently discovered conduct should preclude remedies – Machine operator |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Unreasonable in circumstances for respondent to conclude applicant had intended to abandon employment. Good faith obligations required respondent to make further inquiries to ascertain intention regarding ongoing employment before concluding abandonment had taken place. Applicant did not abandon employment. Dismissal unjustified. REMEDIES: No evidence applicant threatened respondents since dismissal. No reliable evidence of subsequently discovered misconduct which gave rise to reduction in remedies. Applicant knowingly took unauthorised leave. 30 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $10,500 compensation for humiliation etc appropriate. |
| Result | Application granted ; Contributory conduct (30%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($10,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s123(1)(c)(i);ERA s124;ERA s128(3) |
| Cases Cited | Carlton and United Breweries (New Zealand) Pty Ltd v Bourke [1994] 2 ERNZ 1 (EmpC);Cross v Onerahi Hotel Ltd [2014] NZEmpC 26;E N Ramsbottom Ltd v Chambers [2000] 2 ERNZ 97 (CA);Salt v Fell [2008] NZCA 128, [2008] 3 NZLR 193 |
| Number of Pages | 17 |
| PDF File Link: | 2016_NZERA_Auckland_114.pdf [pdf 235 KB] |