| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 423/05 |
| Hearing date | 13 Sep 2005 |
| Determination date | 21 October 2005 |
| Member | R Arthur |
| Representation | K Dunn ; M Dew |
| Location | Auckland |
| Parties | Muir v Savour & Devour Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent hired private investigator to watch applicant - Were discrepancies in takings - Believed had been stealing money - Installed hidden video camera - Saw images believed to be possible indicator of theft - Applicant did change run" to dairy - Believed was taking some money when doing that - Interview with applicant suggested he stole $10 note on change run - Later discovered he did not do that - Applicant admitted other instances of misconduct but not theft - Applicant not shown images or given opportunity to comment - Not given specific dates or times of allegations, instead a general "I'm expecting you to give explanations for stuff that you've been doing in the last couple of weeks" - Dismissed for other instances of misconduct - Applicant's admissions were attempt to demonstrate to his employers that he was being candid and frank in his replies - Was not on notice that admissions about breaches of other policies might result in his dismissal - Applicant's admitted breaches clearly misconduct but none of the breaches were of a dishonest nature capable of being regarded as serious misconduct - Breach of duty of good faith - An employer proposing to make decision that would or was likely to have an adverse effect on continuation of employee's employment must provide that employee with access to information about decision and opportunity to comment on information before decision made - Private investigator deliberately misled applicant regarding the specific information/evidence that the employers had to support allegations made - Remedies - Contributory conduct 20 percent - Reinstatement application declined - PENALTY - Respondent's actions may have warranted a penalty for breach of good faith but no such claim was made - Duty manager" |
| Result | Application granted ; Reimbursement of lost wages (21 weeks) ; Compensation for humiliation etc ($6,500 reduced to $5,200) ; Costs reserved |
| Statutes | ERA s4A(b)(iii);ERA s4(1A) |
| Cases Cited | Ark Aviation Ltd v Newton [2001] ERNZ 133;Lavery v Wellington Area Health Board [1993] 2 ERNZ 31;Murphy and Routhan t/a Enzo's Pizza v van Beek [1998] 2 ERNZ 607;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 ; [2001] 3 NZLR 29 |
| Number of Pages | 10 |
| PDF File Link: | aa 423_05.pdf [pdf 67 KB] |