| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 26/06 |
| Hearing date | 15 Dec 2005 |
| Determination date | 21 February 2006 |
| Member | H Doyle |
| Representation | S Zindel ; A Havill |
| Location | Christchurch |
| Parties | Timmins v Aratuna Freighters Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - At interview, applicant disclosed was on parole from term of imprisonment for assault – No deliberate concealment of nature of assault – Applicant off work on sick leave – One morning, sent text message saying “ 2 sick” - Was sent text message from respondent telling him to do offal run - Applicant responded that he was too sick to do so – Alleged was sent further message indicating he was fired – Meeting to see if resolution of problem could be achieved – Discussion about applicant’s flatmate’s allegations about applicant– Applicant denied first allegation but admitted he used cannabis – Applicant offered employment part time only if he could provide clean drug test – Applicant declined offer – Letter sent to applicant detailing various reasons for dismissal – No conduct by applicant capable of amounting to serious misconduct that could justify dismissal – Procedurally unfair - Unjustified dismissal – Effect of offer of re-employment on remedies – Offer was for five hours per day rather than 11 hours applicant had previously been working – Not unreasonable, given the job was driving and applicant admitted smoking cannabis, that applicant be required to undergo test for cannabis levels – Viewed overall and given hours offered were more than halved, could not conclude applicant acted unreasonably in turning down offer – No contributory conduct – Seemed to be plenty of opportunities for truck drivers – Almost inevitable that respondent would have required applicant to undertake drug test such that may have impacted on continued employment beyond three months – No good reason to extend reimbursement beyond three months - PENALTY - Respondent should be aware that was required to provide written employment agreement - However, not minded to order penalty in present case – Recovery of wages claim allowed - Driver/drivers assistant |
| Result | Application granted ; Reimbursement of lost wages ($9,795.50)(13 weeks) ; Compensation for humiliation etc ($5,000) ; Recovery of wages ($425) ; Interest on unpaid wages (8.5 percent) ; Costs reserved |
| Statutes | ERA s103A;ERA Second Schedule cl11 |
| Cases Cited | Finau v Carter Holt Building Supplies [1993] 2 ERNZ 971 |
| Number of Pages | 7 |
| PDF File Link: | ca 26_06.pdf [pdf 42 KB] |