| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 28/08 |
| Hearing date | 14 Nov 2007 - 15 Nov 2007 (2 days) |
| Determination date | 19 March 2008 |
| Member | H Doyle |
| Representation | R Thompson ; J O'Connell |
| Location | Christchurch |
| Parties | Herdman v Autoglas-Stieger Ltd |
| Summary | UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Applicant’s unjustified disadvantage and dismissal claims based on same facts - Authority did not treat them as separate claims with respect to remedies - Respondent claimed applicant resigned or alternatively dismissal justified by applicant’s refusal to carry out lawful instruction and other actions - Applicant damaged client's car - Respondent alleged applicant had caused minor damage to clients’ cars on previous occasions - Respondent claimed told applicant would have to start paying for damage if incidents continued - Applicant disputed discussion took place - Respondent deducted money from applicant's wages to pay for damage - During discussion about deductions and applicant's potential liability for future incidents respondent received callout - Respondent requested applicant go to callout - Applicant wished to resolve wage deduction issue first - Parties got into an argument and as applicant left office, slammed door and broke glass - Applicant allegedly told co-worker had quit, and co-worker informed respondent - Parties in dispute about events after meeting - Applicant believed dismissed and sought outstanding wages - Respondent believed applicant resigned - Authority found applicant did not intend to resign and respondent had not intended to dismiss applicant during argument - Found was heated situation where not safe for respondent to rely on applicant’s words or actions that resigned - Not sufficient for respondent to rely on second hand information from co-worker - Respondent should have made own inquiries and sought to clarify state of relationship - By maintaining applicant had resigned respondent prevented continuation of relationship, which amounted to dismissal - Respondent’s argument dismissal would have been justified rejected - Authority not persuaded dismissal would have been inevitable - Dismissal unjustified - Remedies - Contributory conduct 25 percent - Applicant’s behaviour not constructive - Authority found only loss of wages attributable to respondent were from time of dismissal until applicant received sickness benefit - Quantum of lost wages to be determined by parties - To assist parties Authority determined applicant's gross weekly wage - Applicant diagnosed with depression, humiliated by experience, withdrew socially and experienced financial hardship - Award of $6,000 compensation appropriate, reduced to $4,500 for contribution - PENALTY - No written employment agreement - Subsequent problems could have been lessened had agreement been provided - Moderate penalty appropriate - Penalty of $200 awarded, payable to Crown - Windscreen repairer |
| Result | Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($6,000 reduced to $4,500) ; Penalty ($200)(Payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA s135 |
| Cases Cited | Boobyer v Good Health Wanganui unreported, Goddard CJ, 24 February 1994, WEC 3/94;Sky Network Television v Duncan [1998] 3 ERNZ 917 |
| Number of Pages | 13 |
| PDF File Link: | ca 28_08.pdf [pdf 51 KB] |