| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 316/08 |
| Hearing date | 29 Jul 2008 |
| Determination date | 02 September 2008 |
| Member | R A Monaghan |
| Representation | F Wood, Sl Wootton ; L A Adams |
| Location | Rotorua |
| Parties | Morgan v Cotterill Security Fencing and Gates Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Misconduct - Applicant outlined concerns about respondent’s financial state and management in letter to respondent’s director (“A”) - A claimed letter negative and intimidating - Authority found letter written in moderate tone; expressing valid concerns - Authority found underlying tensions and issues between applicant and A - Applicant believed A wanted to dismiss while A believed applicant wished to resign - A called applicant to meeting to discuss concerns in letter - Applicant believed going to be dismissed - A asked partner (“J”) to be spokesperson as intimidated by applicant - Applicant considered J’s involvement inappropriate as was former employee - Applicant told J to “f**k off” and became angry and abusive - A told applicant was dismissed - Applicant left respondent’s premises immediately - Authority found meeting was flashpoint for parties’ concerns and difficulties - Found applicant’s conduct at meeting reason for dismissal - Found applicant not entitled to dismiss J’s involvement as A entitled to spokesperson - Found meeting not disciplinary - Authority found while relationship between parties fragile, had not reached point where A justified in moving immediately to dismiss applicant - Found A could have informed applicant J’s role to speak for A and applicant required to observe that role, and refusal could place employment at risk - Found failure to take that action not adequately answered by A’s reference to depressive condition or sense of intimidation - Dismissal unjustified - Remedies - Authority found applicant’s refusal to accept J’s role and subsequent abusive behaviour contributed to circumstances of dismissal - Found 50 percent contributory conduct - Applicant sought seven weeks lost remuneration less earnings from temporary employment - Authority took average hours worked per week as neither party provided adequate earnings records - Authority found award of $5,878 lost wages appropriate but reduced award to $2,939 for contributory conduct - Authority found applicant angry about dismissal, and worried about financial implications of being without job over Christmas period - Taking into account contributory conduct award of $3,000 compensation appropriate - RECOVERY OF MONIES - In statement of evidence applicant claimed too much PAYE deducted from final pay - Authority found inappropriate to raise new claim that way - Found matter should be taken up with IRD - Applicant sought order for return of tools - At investigation meeting parties agreed applicant could collect items - Respondent did not observe agreement - Authority directed respondent to observe agreement - Operations manager |
| Result | Application granted (unjustified dismissal) ; Application granted (recovery of monies) ; Application dismissed (recovery of monies) ; Reimbursement of lost wages ($5878 reduced to $2,939) ; Compensation for humiliation etc ($3,000 reduced for contributory conduct) ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 10 |
| PDF File Link: | aa 316_08.pdf [pdf 33 KB] |