| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 188 |
| Hearing date | 10, 11, 12 & 16 May 2016 (4 days) |
| Determination date | 13 June 2016 |
| Member | Anna Fitzgibbon |
| Representation | C Stewart, S Ball ; R Rendle, C Walker |
| Location | Auckland |
| Parties | Miller v Metropolitan Glass & Glazing Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by suspension, bullying and harassment – Applicant claimed unjustifiably dismissed by respondent – RECOVERY OF MONIES – Applicant sought recovery of special damages for legal costs incurred – Project manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent did not act as fair and reasonable employer in circumstances. Applicant not given opportunity to respond to allegations prior suspension. Respondent failed to comply with own disciplinary policy. No procedural fairness. Insufficient evidence applicant subject to bullying and harassment. Respondent did not bully or harass applicant. Applicant unjustifiably disadvantaged by suspension. Respondent could not form view from CCTV footage applicant acted in aggressive manner. CCTV handwritten notes indicated bias against applicant. Applicant’s conduct did not reach threshold of serious misconduct. Respondent’s focus on serious misconduct affected process undertaken. No procedural fairness. Respondent failed to take into account applicant’s recent positive performance appraisal. Dismissal unjustified. REMEDIES: Applicant forcefully vented frustrations in inappropriate manner. 10 per cent contributory conduct. Reinstatement ordered. Respondent to pay applicant $32,187 reimbursement of lost wages. $25,200 compensation for humiliation etc appropriate.;RECOVERY OF MONIES: Seeking special damages for legal costs circumvents Authority’s costs regime. Applicant’s claim more appropriate for costs claim. No recovery of monies. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal) ; Contributory conduct (10%) ; Reimbursement of lost wages ($32,187.48) ; Compensation for humiliation ($25,200) ; Reinstatement ordered ; Application dismissed (recovery of monies) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(5);ERA s123;ERA s123(1)(c)(i);ERA s124;ERA s125;ERA s128;ERA s128(3);ERA s174E;ERA Second Schedule cl10(1) |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] NZEmpC 160, [2011] ERNZ 466;B & D Doors Ltd v Hamilton (2007) 5 NZELR 69 (EmpC);Campbell v Commissioner of Salford School [2015] NZEmpC 122;George v Auckland Council [2013] NZEmpC 179, [2013] ERNZ 675;H v A Ltd [2014] NZEmpC 189;Hall v Dionex Pty Ltd [2015] NZEmpC 29;Harwood v Next Homes Ltd [2003] 2 ERNZ 433 (EmpC);Hayward v Tairawhiti Polytechnic EmpC Auckland AC43A/05, 22 December 2005;Lewis v Howick College Board of Trustees [2010] NZCA 320;New Zealand (with exceptions) Shipwrights etc Union v Honda NZ Ltd [1989] 3 NZILR 82 (LC);Sam's Fukuyama Food Services Ltd v Zhang [2011] NZCA 608, [2011] ERNZ 482;Singh v Sherildee Holdings Ltd t/a New World Opotiki EmpC Auckland AC53/05, 22 September 2005 |
| Number of Pages | 36 |
| PDF File Link: | 2016_NZERA_Auckland_188.pdf [pdf 387 KB] |