| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 392/07 |
| Hearing date | 13 Nov 2007 |
| Determination date | 13 December 2007 |
| Member | R A Monaghan |
| Representation | C Garvey ; D Organ |
| Location | Auckland |
| Parties | Sminchisescu v Five Star Distribution Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Misconduct - Applicant dismissed for returning to workplace in breach of instruction not to - Incident involving staff applicant responsible for taking beer from damaged delivery - Manager began to investigate matter - Applicant suspended on pay and told not come on site until matter resolved - Later given permission to return and collect personal property, but issue arose over whether took work documents or tried to influence people involved in investigation - Respondent considered applicant removed incident report - Disciplinary meeting held regarding serious misconduct - Unclear whether misconduct referred to removal of beer or paperwork - Grounds not made clear until end of meeting when told related to failure to follow instructions - Applicant dismissed - Circumstances relating to applicant’s conduct over beer incident not unusual and did not warrant suspension - Unjustified disadvantage - Difficult for respondent to justify dismissal for failure to follow instruction associated with unjustified suspension - Overall applicant’s conduct not properly investigated and dismissal profoundly flawed - Respondent not entitled to reach conclusion it did - Dismissal unjustified - Remedies - In absence of properly completed investigation respondent could not rely on any loss of trust and confidence arising out of matters - Although at times applicant behaved in underhanded way, conduct not serious enough to base finding should not be reinstated - Supervisor |
| Result | Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($2,000)(Disadvantage) ; ($3,000) (Dismissal) ; Reinstatement ordered ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Birss v Secretary for Justice [1983] 1 NZLR 513;Graham v Airways Corporation of New Zealand [2005] ERNZ 587 |
| Number of Pages | 21 |
| PDF File Link: | aa 392_07.pdf [pdf 62 KB] |