| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 317/05 |
| Hearing date | 9 Aug 2005 |
| Determination date | 19 August 2005 |
| Member | D Asher |
| Representation | A Golightly ; M Maharaj |
| Location | Whangarei |
| Parties | Hemara v The Warehouse Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct - Failure to follow reasonable instruction – Applicant became aware that the Nightfill Team Leader Assistant would not be present for a certain shift so approached supervisor and offered to take that person’s place – Alleged was concerned to ensure there was support for another Nightfill Supervisor resuming work after being on parental leave – Supervisor declined applicant’s offer and told him not to work that shift – Applicant worked that shift notwithstanding instruction to the contrary – Disciplinary investigation into applicant’s refusal to follow reasonable instruction not to work resulted in dismissal – Alleged breach of Company House Rule (failure to follow reasonable instruction) - Application determined in terms of current Act (as recently amended) – Section 4(1A) (a) and (b) relevant – Applicant unjustifiably dismissed - Applicant not advised that disobedience could be construed as serious misconduct – Unaware of potential consequences of action – Some information not put to applicant to comment on - Work history to date exemplary – Action by applicant not wilful disobedience and not serious misconduct – After dismissal, applicant offered to work one shift for free or forfeit pay he received for working unauthorised shift when raised personal grievance – Evidence before respondent was of an employee who genuinely sought to assist a co-worker while failing to appreciate that his initiative was inappropriate – Evidence before Authority was that respondent had failed to consider and balance its and its employee’s interests – Remedies - Contributory conduct 5 percent - Nightfill Supervisor |
| Result | Application granted ; Reimbursement of lost wages ($2,688 reduced to $2,553.60) ; Compensation for humiliation etc ($7,000 reduced to $6,650) ; Costs reserved |
| Statutes | ERA s4(1A)(a);ERA s4(1A)(b);ERA s124 |
| Cases Cited | Air New Zealand Ltd v Johnston [1992] 1 ERNZ 700;Chief Executive of the Department of Inland Revenue v Buchanan and Anor [2004] 2 ERNZ 392;Honda NZ Ltd v NZ (with exceptions) Shipwrights etc Union [1990] 3 NZILR 23 ; [1991] 1 NZLR 392;Northern Distribution Union v BP Oil NZ Ltd [1992] 3 ERNZ 483;Sky Network Television Ltd v Duncan [1998] 3 ERNZ 917;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315;W&H Newspapers Ltd v Oram [2000] 2 ERNZ 448 |
| Number of Pages | 12 |
| PDF File Link: | aa 317_05.pdf [pdf 54 KB] |