| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 12/06 |
| Hearing date | 16 Nov 2005 |
| Determination date | 30 January 2006 |
| Member | H Doyle |
| Representation | TJ Twomey ; MA Kyne |
| Location | Christchurch |
| Parties | Kostic v Dodd and Milligan (partnership) t/a Allan Milligan Cars and/or Motoworld Systems Ltd t/a Allan Milligan Cars |
| Summary | PRACTICE AND PROCEDURE - Identity of employer - Agreed by parties that not required to determine identity of respondent but any orders could be made jointly or severally against both respondents - UNJUSTIFIED DISADVANTAGE - Alleged failure to provide applicant with assistance in establishing good relationships with colleagues and failure to warn him about perceived behavioural problems - Respondent tolerated applicant's behaviour but this did not disadvantage him - Alleged racial harassment and discrimination - Applicant alleged one director (D") would make weekly comments referring to applicant's ethnicity - Not satisfied that D made racial comments or harassed applicant - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Angry exchange - Authority found that D was upset and annoyed that other director ("M") had undertaken appraisal of trade-in vehicle contrary to earlier conversation with applicant and wanted an explanation from applicant - Not unreasonable for D to question applicant about this - Applicant quickly became very angry - D did not dismiss or intend to dismiss applicant during exchange - Applicant indicated that he wanted his final pay check - Not rational when he made statements indicative of resignation - Respondent should have attempted to verify situation when all parties were calm - Case where applicant was, against his will, treated by respondent as having resigned - Heat of the moment - Not open to respondent to decide applicant had resigned without further discussion - Dismissal - More probable than not that applicant sped up to crash into D while both were walking back to office - Conduct capable of amounting to serious misconduct - No opportunity for applicant to provide explanation for behaviour - Unjustified dismissal - Remedies - 100% contributory conduct - Applicant only entitled to contribution to costs - Motor vehicle salesman" |
| Result | Application granted ; Costs reserved |
| Statutes | ERA s103A |
| Cases Cited | Boobyer v Good Health Wanganui unreported, Goddard CJ, 24 February 1994, WEC 3/94;Chicken and Food Distributors (1990) Ltd v Central Clerical Workers Union [1991] 1 ERNZ 502;Morris v Christchurch International Airport Ltd [2004] 1 ERNZ 336 |
| Number of Pages | 9 |
| PDF File Link: | ca 12_06.pdf [pdf 55 KB] |