| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 129/08 |
| Hearing date | 2 Sep 2008 - 3 Sep 2008 (2 days) |
| Determination date | 26 September 2008 |
| Member | D Asher |
| Representation | R Lewis ; G Service, L Pryde |
| Location | Wellington |
| Parties | Kumar v Transfield Services NZ Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed for removal of company property and for claiming payment for hours not worked – Co-workers alleged saw applicant take food items from workplace – Applicant advised of three allegations and called to meeting – After investigation respondent dropped one of three allegations and argued elected not to pursue others – Applicant summarily dismissed – Respondent argued did not find applicant’s explanation for use of food items credible – Respondent also argued applicant recorded hours on timesheet that were not worked – Authority found part of respondent’s procedure satisfactory, however, found dismissal unjustified – Authority found respondent’s decision to dismiss relatively narrowly based and relied on preferring accounts of two junior employees to that of applicant – Found respondent had no prior reasons to doubt applicant’s credibility when faced with equally competitive credibility claims – Authority found respondent’s assessment0 of use of food items subjective – Found no objective calculation attempted by respondent – Found unfair of respondent to expect applicant to produce menus in support of claims as own investigation disclosed menu records not kept – Authority found respondent may have had strong personal reasons for doubting applicant’s accounts but that did not amount on objective basis to conduct by fair and reasonable employer – Dismissal unjustified – Remedies – Applicant sought reinstatement – Applicant disputed genuineness of restructuring which respondent claimed disestablished applicant’s position – Authority found not practicable to reinstate applicant as no reason to doubt genuineness of respondent’s restructuring – Found as applicant no longer able to return to original position because of restructuring then entitled to redundancy compensation – Found $14,000 compensation appropriate as serious impact of dismissal on applicant – Found despite absence of medical records applicant entitled to reimbursement of one month’s wages – Kitchen manager |
| Result | Application granted ; Reimbursement of lost wages (1 month) ; Compensation for humiliation etc ($14,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA s125;ERA s125(2);ERA s128 |
| Cases Cited | NZ (with exceptions) Shipwrights Union v NZ Amalgamated Engineering IUOW;(1989) ERNZ Sel Cas 516; [1989] 3 NZILR 284 |
| Number of Pages | 8 |
| PDF File Link: | wa 129_08.pdf [pdf 35 KB] |