| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 74 |
| Hearing date | 1, 2 & 3 Mar 2016 (3 days) |
| Determination date | 08 June 2016 |
| Member | Peter van Keulen |
| Representation | T Twomey ; F McMillan |
| Location | Christchurch |
| Parties | Harper v Broomfield Estate Partnership |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably disadvantaged by suspension – Applicant claimed unjustifiably dismissed by respondent – PENALTY – Applicant sought penalties for deductions from holiday pay and breaching employment agreement (“EA”) by undertaking unfair disciplinary process– COUNTERCLAIM – BREACH OF CONTRACT - Respondent sought damages for applicant’s breach of EA |
| Abstract | AUTHORITY FOUND –RAISING PERSONAL GRIEVANCE: Grievance letter received within 90 days. Grievance raised with sufficient specificity for respondent to be able to respondent. Grievance raised within 90 days.UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Circumstances of case did not warrant immediate suspension without consultation. Not sufficient to say that employee has chance to respond after decision to suspend already made. Suspension disadvantaged applicant. Applicant unjustifiably disadvantaged. Respondent failed to investigate fully and with open mind and failed to properly consider applicant’s responses. Respondent’s process and decision biased as person conducting investigation and process and making decision also complainant on many aspects. Respondent failed to provide relevant information to applicant before deciding to dismiss. No basis for respondent to conclude serious misconduct occurred. Dismissal unjustified. REMEDIES: 30 per cent contributory conduct. Respondent to pay applicant $21,000 reimbursement of lost wages. $11,200 compensation appropriate.PENALTY: Respondent rectified breach of making unlawful deduction as soon as aware of unlawfulness. Disciplinary process flawed but does not amount to breaches of EA. No penalty.COUNTERCLAIM – BREACH OF CONTRACT: Evidence insufficient to establish that applicant guilty of conduct giving rise to personal gain or benefit. No damages. |
| Result | Applications granted (raising personal grievance)(unjustified disadvantage)(unjustified dismissal) ; Contributory conduct (30%) ; Reimbursement of lost wages ($21,000) ; Compensation for humiliation etc ($11,200) ; Applications dismissed (penalty)(counterclaim – breach of contract) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A) ; ERA s103A(2) ; ERA s103A(3) ; ERA s103A(3) ; ERA s114 ; ERA s124 ; ERA s128 ; ERA s174E ; Wages Protection Act 1983 |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] NZEmpC 160, [2011] ERNZ 466 ; Association of Staff in Tertiary Education v Northland Polytechnic Council [1992] 2 ERNZ 943 (EmpC) ; Creedy v Commissioner of Police [2006] ERNZ 517 (EmpC) ; Fagotti v Acme Ltd [2015] NZEmpC 135 ; George v Auckland Council [2013] NZEmpC 179, [2013] ERNZ 675 ; Graham v Airways Corporation of New Zealand Ltd [2005] ERNZ 587 ; Henderson v The Flooring Centre Ltd t/a The Flooring Centre South Ltd [2015] NZERA Christchurch 41 ; Idea Services Ltd (in Stat Man) v Barker [2012] NZEmpC 112, [2012] ERNZ 454 ; Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225 (EmpC) ; JP Morgan Chase Bank NA v Lewis [2015] NZCA 255, [2015] 3 NZLR 618 ; Lister v Romford Ice & Cold Storage Co Ltd [1957] 1 All ER 125 ; New Zealand Post Primary Teachers’ Association v Board of Trustees of Okaihau College [2015] NZERA Auckland 262 ; Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483 (CA) ; PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC) ; Salt v Fell [2008] NZCA 128, [2008] ERNZ 155 ; Sam’s Fukuyama Food Services Ltd v Zhang [2011] NZCA 608, [2011] ERNZ 482 ; Tan v Yang [2014] NZEmpC 65, [2014] ERNZ 733 ; Walker v Firth Industries a division of Fletcher Concrete & Infrastructure Ltd [2014] NZEmpC 60 |
| Number of Pages | 31 |
| PDF File Link: | 2016_NZERA_Christchurch_74.pdf [pdf 346 KB] |