| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 359 |
| Hearing date | 11 and 12 Aug 2016 (2 days) |
| Determination date | 01 November 2016 |
| Member | R Arthur |
| Representation | R McNaughton ; T Oldfield |
| Location | Hamilton |
| Parties | Graham v Gladstone Retail Ltd |
| Other Parties | Gladstone Retail Ltd v Graham |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant claimed unjustifiably dismissed by respondent - Applicant instructed staff to prepare food for sale after use by date and falsify documents - COUNTERCLAIM - PENALTY - Respondent sought penalty for applicant’s breach of employment agreement - Deli manager |
| Abstract | AUTHORITY FOUND -UNJUSTIFIED DISMISSAL: Applicant not given opportunity to be heard by decision maker. Disparity of treatment compared to other staff member involved. Applicant not given reasonable opportunity to respond to all concerns. Respondent did not genuinely consider applicant’s explanation. Respondent’s conclusion hasty. Procedural defects more than minor. Fair and reasonable employer could not have dismissed applicant in circumstances. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Respondent to pay applicant $6,483 reimbursement of lost wages. $3,500 compensation appropriate.COUNTERCLAIM - PENALTY: Penalty would be form of triple jeopardy. Penalty claim appeared to be intended to discourage applicant from pursuing personal grievance. No evidence breach was anything other than one-off occurrence. Disciplinary power of employer strong enough deterrent. Weak evidence for impact on business. No penalty. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($6,483.75) ; Compensation for humiliation etc ($3,500) ; Application dismissed (counterclaim - penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A - ERA s103A(1) - ERA s103A(2) - ERA s103A(3)(a) - ERA s103A(3)(c) - ERA s103A(3)(d) - ERA s103A(5) - ERA s124 - ERA s128(2) - ERA s133A - ERA s134 - ERA s136(2) - ERA s174E |
| Cases Cited | Air New Zealand Ltd v Samu [1994] 1 ERNZ 93 (EmpC);Air New Zealand Ltd v Samu [1995] 1 ERNZ 636 (CA);Air New Zealand Ltd v V [2009] ERNZ 185 (EmpC);Angus v Ports of Auckland Ltd (No 2) [2011] NZEmpC 160, [2011] ERNZ 466;Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767 (EmpC);Fagotti v Acme & Co Ltd [2015] NZEmpC 135, (2015) NZELR 1;George v Auckland Council [2013] NZEmpC 179, [2013] ERNZ 675;Hall v Dionex Pty Ltd [2015] NZEmpC 29;Howard v Carter Holt Harvey Packaging Ltd [2014] NZEmpC 157, (2014) 12 NZELR 374;Irvines Freightlines Ltd v Cross [1993] 1 ERNZ 424 (EmpC);PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC);Quinn v Bank of New Zealand [1991] 1 ERNZ 1060 (LC);Ritchies Transport Holdings Ltd v Merennage [2015] NZEmpC 198;Tan v Yang [2014] NZEmpC 65;Whanganui College Board of Trustees v Lewis [2000] 1 ERNZ 397 (CA);Xtreme Dining Ltd v Dewar [2016] NZEmpC 136 |
| Number of Pages | 29 |
| PDF File Link: | 2016_NZERA_Auckland_359.pdf [pdf 379 KB] |