| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 385/08 |
| Hearing date | 28 Oct 2008 |
| Determination date | 10 November 2008 |
| Member | A Dumbleton |
| Representation | K Ngatai ; L Henry |
| Location | Auckland |
| Parties | Conrad v Taumata Poihipi Te Kohanga Reo |
| Summary | UNJUSTIFIED DISMISSAL – Employment agreement (“EA”) contained provision that employee prohibited from joining KiwiSaver – Applicant claimed local supervisor (“H”) stated respondent could not afford KiwiSaver and respondent did not want applicant if applicant wished to join scheme – Applicant obtained legal advice and found that employer could not legally prevent applicant from joining KiwiSaver – Applicant approached H about matter and altercation ensued, which included H placing hands on applicant’s neck – Both parties laid assault complaints with police, accusing one another of initiating aggression, but no charges laid – H served applicant with trespass notice – Parties agreed applicant was dismissed during confrontation – H confirmed dismissal with letter – Applicant wrote to chairman, raising grievance – H responded denying grounds for grievance and rejecting request for meeting – Authority found rejection of meeting request breached clause in EA – Found EA also entitled applicant to another joint meeting with or without presence of wh�nau or other support person – Authority noted resolution of grievance impeded by respondent’s failure to attend mediation and co-operate generally – H argued actions were self-defence – Authority preferred applicant’s evidence of events – Found applicant did not initiate fracas – Authority found respondent made no inquiry into confrontation – Respondent only aware of H’s side of events – No opportunity to have grievance considered by anyone other than H, who was too close to situation to be objective – Respondent could not fairly or reasonably conclude that applicant guilty of serious misconduct until it sought explanation from applicant – Dismissal unjustified – Remedies – No contributory conduct – Applicant entitled to reimbursement of lost wages for five weeks applicant unemployed – Applicant’s considerable distress exacerbated by unreasonably issued trespass notice banning applicant from local marae – Authority considered applicant’s sympathies for Kohanga Reo and applicant’s awareness that respondent unlikely to have spare funding for compensation award – Relatively small award to take into account nature of employer and its limited available resources - Kaiawhina Tamariki Te Reo (Maori Language Teacher) |
| Result | Application granted ; Reimbursement of lost wages ($1,464) ; Compensation for humiliation etc ($800) |
| Main Category | Personal Grievance |
| Statutes | ERA 2000 s103A;ERA 2000 s128 |
| Number of Pages | 7 |
| PDF File Link: | aa 385_08.pdf [pdf 27 KB] |