| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 21A/07 |
| Hearing date | 24 Jul 2007 - 25 Jul 2007 (2 days) |
| Determination date | 10 August 2007 |
| Member | D Asher |
| Representation | G Davenport ; P Elder |
| Location | Wellington |
| Parties | Kurene and Anor v United Group Rail (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - First applicant (K") dismissed for alleged failure to follow reasonable instruction of supervisor ("S") – During first investigation meeting, respondent conceded K would be reinstated on interim basis - At substantive investigation meeting, respondent conceded dismissal unjustified, and agreed to permanently reinstate K - BREACH OF CONTRACT - Damages - Applicants claimed respondent breached implied term of employment agreement by failing to ensure supervisor (“M”) did not engage in intimidating/threatening conduct towards S as witness - S gave evidence at investigation meetings K complied with instruction – S later claimed M approached him after interim investigation meeting regarding evidence – S informed applicant but asked she keep it confidential - Respondent claimed no loss to K arose out of M's actions - M’s actions perilously close to deliberate threats and intimidation – Authority prepared to accept M did not intend to persuade S to change his evidence - M’s actions would have intimidated any reasonable person – Actions not sanctioned by respondent - Authority satisfied K damaged by actions - Damages appropriate - Applicants' also alleged contempt of court - Actions did not happen within "the face of the Authority" as required by s196 Employment Relations Act 2000 ("ERA") - Actions did not amount to contempt of Authority - No need to adopt referral to Employment Court procedure under s196 - Because of seriousness of M’s actions, Authority referred determination and copies of submissions to Solicitor-General - Remedies - Respondent claimed K contributed to grievance by intending not to follow S's instruction - No contributory conduct found - Authority took into account respondent's concessions and offers of compensation and costs in award of compensation" |
| Result | Applications granted ; Compensation for humiliation etc ($14,000) ; Breach of contract ($6,000)(Damages) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s196 |
| Cases Cited | Designlink Ltd t/a Rodney Wayne Hairdressing Whangaparaoa and Ors v Raymond unreported, Colgan J, 1 May 2006, AC 24/06;Ho v Chief of Defence Force [2005] 1 ERNZ 93;Kurene & Anor v United Group Rail (NZ) Ltd unreported, D Asher, 5 February 2007, WA 21/07;NZ Railways Corporation v NZ Seamens IUOW and Evans [1989] 2 NZILR 613 ; (1989) ERNZ Sel Cas 321;Sloggett v Taranaki Health Care Ltd [1995] 1 ERNZ 553;Solicitor General v Radio Avon Ltd [1978] 1 NZLR 225 (CA);Talbot v Air New Zealand Ltd [1995] 1 ERNZ 609 |
| Number of Pages | 11 |
| PDF File Link: | wa 21a_07.pdf [pdf 38 KB] |