| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 283/06 |
| Hearing date | 20 Jun 2006 |
| Determination date | 06 September 2006 |
| Member | L Robinson |
| Representation | G Blair ; G Lloyd |
| Location | Auckland |
| Parties | Housham & Anor v Juken New Zealand Ltd |
| Other Parties | Tawhai |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicants members of union engaged in collective negotiations with respondent - Half way through shift applicants handed note to supervisor and walked out – Note claimed they were protesting lack of progress in negotiations and non-union members breaking of overtime ban – Respondent considered leaving site without approval breached code of conduct and was serious misconduct – After full and fair investigation, applicants were issued final written warning and first applicant transferred to different position – Authority accepted applicants acted genuinely and actions constituted lawful strike – Authority agreed with applicants’ observations that a strike has never denied employer a right to take disciplinary action for breach of employment agreement because normal employment relationship obligations continue; however, convention tends to discourage employers from taking disciplinary action in relation to lawful strike action – Respondent appeared to accept applicants’ explanation for actions but concluded actions not “reasonable or justified” – Difficult to characterise actions expressly deemed lawful as not “reasonable or justified” – Applicants acted to facilitate continuation of employment relationship – Fair and reasonable employer would not regard lawful and genuine strike action, however inconvenient, as constituting serious misconduct – Equally implausible that locked out employees would have legitimate personal grievances against employer - Applicants unjustifiably disadvantaged by written warning – First applicant unjustifiably disadvantaged by transfer – Remedies – First applicant no longer employed by respondent so no need to deal with warning – Respondent ordered to remove second applicant's final written warning - DISCRIMINATION - No evidence of discrimination - Length of service not specified - Lathe operators |
| Result | Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($2,000)(First applicant) ; ($1,000)(Second applicant) ; Orders accordingly ; Application dismissed (Discrimination) ; Costs reserved |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] 1 ERNZ 415;Tamarua v Toll Tranzlink Ltd [2006] 1 ERNZ 599 |
| Number of Pages | 8 |
| PDF File Link: | aa 283_06.pdf [pdf 41 KB] |