| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 193/08 |
| Hearing date | 23 Sep 2008 |
| Determination date | 15 December 2008 |
| Member | H Doyle |
| Representation | S McRae ; K Pascoe |
| Location | Christchurch |
| Parties | Faulkner v The Mill Liquorsave Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably disadvantaged as did not receive letter of written warning – Applicant given letter to advise of disciplinary meeting to discuss alleged breach of company policy, for allowing stock to leave premises without proper documentation procedures – At meeting, applicant admitted fault – Respondent advised applicant written warning would be issued - Applicant never received letter of written warning – Authority found importance of following procedures emphasised at disciplinary meeting and applicant understood that continued breaches of policy could lead to further disciplinary action and ultimately dismissal – Found applicant not in receipt of first written warning as contemplated in individual employment agreement (“IEA”) - Applicant called to further disciplinary meeting for breach of company policy and procedure – In meeting, respondent asked applicant whether was driver in delivery where error made – Applicant replied “not sure, probably” – Applicant explained job sometimes busy and sometimes missed checking off orders and made quick drop off rather than obtain signature – Further meeting planned for following day but applicant sick – Respondent concluded applicant’s attitude blas� and no assurance would comply with policy in future – Applicant dismissed – Authority found further evidence showed applicant was driver, but respondent should have established whether or not applicant was driver at outset of meeting – Found allowing stock to leave premises before approved documentation procedures implemented classed as serious misconduct under IEA – However, found applicant’s behaviour not dishonest and deliberate, but simply careless, and below performance standards – Found respondent relied on earlier written warning, although applicant never received written copy – Found fair and reasonable employer would not have concluded serious misconduct by applicant – Found written warning appropriate penalty – Dismissal unjustified – Remedies - Authority considered disadvantage claim fell within dismissal grievance – Found 30 percent contributory conduct appropriate – Applicant without employment for 10 weeks – Authority found quantum of reimbursement of lost wages to be determined by parties – Found moderate compensation award appropriate - ARREARS OF WAGES – Applicant not paid for one or two days’ work prior to termination of employment – Authority found not reasonable for applicant to be required to provide proof of sickness in circumstances – Found applicant entitled to arrears of wages - PENALTY – Found penalty not appropriate - Shop assistant and driver |
| Result | Applications granted (dismissal)(arrears of wages) ; Applications dismissed (disadvantage)(penalty) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($5,000 reduced to $3,500) ; Arrears of wages (quantum to be determined) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | X v Auckland District Health Board [2007] 1 ERNZ 66 |
| Number of Pages | 12 |
| PDF File Link: | ca 193_08.pdf [pdf 48 KB] |