| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 9/07 |
| Hearing date | 1 Nov 2006 |
| Determination date | 18 January 2007 |
| Member | K Raureti |
| Representation | F Wood ; S Lance |
| Location | Auckland |
| Parties | Coleman v Rotorua Forest Haulage Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Misconduct - Dismissed for refusing to follow instructions and taking unauthorised leave - No written agreement - Applicant alleged parties agreed to pay rise after six months - Respondent claimed agreed only to review and when not given raise applicant stopped following instructions to load trailer onto empty truck - Gave applicant letter reminding him of instruction - Likely pay issue impacted on applicant's work - Loading trailer not as problematic as applicant described - Evidence did not show applicant received warning - Letter did not refer to warning or identify consequences of not carrying trailer - Applicant later took sick day - Claimed unable to contact respondent so got co-worker to cover shift - Respondent submitted had 24 hour contact number and applicant's arrangement jeopardised another contract - Suspended for unauthorised absence and refusing to carry trailer - Subsequent disciplinary meeting heated and unproductive - Dismissed next day - Premature to categorise absence as unauthorised without further enquiry - Other avenues open to determine genuineness of absence - No contractual right or immediate need to suspend - Before dismissal respondent required to clearly and unequivocally put instructions and consequences to applicant - Suspension and dismissal not actions of fair and reasonable employer - Dismissal unjustified - Remedies - Not carrying trailer and belligerence toward employer blameworthy conduct - Contributory conduct 40 percent - Applicant also claimed lost wages - Applicant had not accepted interim reinstatement because not original job and did not fit childcare arrangements - Respondent knew circumstances - Reasonably foreseeable applicant would decline offer - Driver |
| Result | Application granted ; Compensation for humiliation etc ($2,500) ; Reimbursement of lost wages ($3,292.80) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand Ltd v Hudson (2006) 3 NZELR 15;Association of Staff in Tertiary Education v Northland Polytechnic Council [1992] 2 ERNZ 943;Birss v Secretary of Justice [1984] 1 NZLR 513;Gray v Nelson Methodist Presbyterian Hospital Chaplaincy Committee [1995] 1 ERNZ 672 |
| Number of Pages | 7 |
| PDF File Link: | aa 9_07.pdf [pdf 100 KB] |