| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 30/08 |
| Hearing date | 7 Dec 2007 |
| Determination date | 31 March 2008 |
| Member | H Doyle |
| Representation | J Firth ; R Lamb |
| Location | Timaru |
| Parties | Barr v P and L Byrne Farming Partnership |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Parties agreed during directions conference respondent correct employer – JURISDICTION – Applicant claimed was person intending to work but employment did not eventuate – Respondent a partnership consisting of “X” and “Y” – Respondent argued applicant not a person intending to work because no intention to employ applicant until employment agreement (“EA”) signed – Applicant employed for season by sharemilker (“L”) and lived on farm premises – L intending to move to another area and asked applicant and wife (“B”) to follow – Applicant refused offer as wanted to stay in local area – Respondent offered position of lower order sharemilker on farm by then owners (“M”) – L advised respondent that applicant wanted to stay on farm – X met with applicant and offered sum for full time employment but no discussion of written EA – X argued meeting ended on basis applicant would get back with intentions – Authority found at second meeting applicant made it clear to X keen to accept offer discussed at first meeting – Authority did not accept respondent’s argument that offer conditional on Y meeting applicant – Authority satisfied offer made at first meeting and offer accepted at second meeting – Authority satisfied applicant a person intending to work – UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant drove home intoxicated following earlier argument with B – Upon returning home had second argument with B – B left home with children – Applicant charged and convicted with unlawfully possessing an unlicensed firearm – Applicant given sick leave by L but returned to work for L for remainder of dairy season - Respondent met with applicant and decided not willing to sign EA as did not want to subject family to that environment – Applicant claimed suffering depression and did not usually act that way – Authority found as result of conversation applicant dismissed – Following dismissal applicant charged with and pleaded guilty to charges of driving with excess breath alcohol and possession of cannabis seeds – Authority found fair and reasonable employer would have given applicant warning of meeting – Authority satisfied respondent made up mind to dismiss prior to meeting with applicant – Authority satisfied applicant not able to give real explanation for conduct capable of being properly considered before decision made – Authority found employer would need to be satisfied misconduct such a significant breach of trust and confidence – Authority found fair and reasonable employer would have considered applicant suffering from depression and whether trial periods appropriate to address concerns – Dismissal unjustified – REMEDIES – Applicant entitled to $904 reimbursement of lost wages – Authority also awarded $350 for the loss of benefit incurred in relocating accommodation – Authority found $3000 compensation appropriate due to pressure and stress suffered by applicant – Authority assessed applicant’s contribution to grievance at 25 percent as behaviour gave respondent cause for concern about applicant’s suitability – Farmhand/Milker |
| Result | Application granted ; Reimbursement of lost wages ($904.20 reduced to $678.15) ; Lost benefit ($350 reduced to $262.50) ; Compensation for humiliation etc ($3,000 reduced to $2,250) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s6(1)(b)(ii);ERA s5;ERA s103A |
| Cases Cited | Baker v Armourguard Security Ltd [1998] 1 ERNZ 424;Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand [2002] 2 NZLR 433 |
| Number of Pages | 15 |
| PDF File Link: | ca 30_08.pdf [pdf 54 KB] |