| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 165/08 |
| Hearing date | 2 Dec 2008 - 3 Dec 2008 (2 days) |
| Determination date | 12 December 2008 |
| Member | D Asher |
| Representation | R Burt ; E Hartdegen |
| Location | Wellington |
| Parties | Gledhill v Narau Beach Investments Ltd t/a McDonalds Mana |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Respondent alleged applicant gave away free food, breaching property and product policy – Applicant voided cost of friends’ orders – Applicant and witness gave evidence that applicant told shift manager (“S”) and co-worker that would pay for orders himself at end of shift – S claimed applicant told S customers would pay for orders later – At end of shift, applicant began transaction - S intervened, stating should not process own orders – S reduced price of meals to staff prices – S forwarded incident report to respondent – Notice to attend disciplinary meeting alleged applicant voided cost of meals and told S that would make customers pay later – Applicant dismissed at end of second disciplinary meeting – Authority found applicant not given clear notice of nature of allegation for which dismissed – Only instance where allegation of theft put to applicant was cryptic – No record of respondent putting to applicant that should have paid for transaction at time of orders - Applicant entitled to clear notice of employer’s concerns – Authority also found applicant did not enjoy reasonable enquiry – Fair and reasonable employer would have made allegation of breach of work rule clear – Found respondent also relied on S’s written report and second-hand account of interview with S, rather than interviewing S directly – Found reasonable inquiry would have included interviewing co-workers and sharing interview notes with applicant – Authority also found respondent did not have clear evidence to dismiss applicant - At disciplinary meetings applicant gave little detail of incident as believed was simple misunderstanding – Found more adequate inquiry may have drawn more articulate response from applicant and linked applicant’s payment at end of shift to voiding of orders – Respondent could have clarified conflicts in statements during disciplinary investigation with further enquiry – Authority found respondent’s “guilty as charged” approach not fair and reasonable assessment of conduct - Dismissal unjustified – REMEDIES – Authority noted applicant’s actions in appearing to give free food were significantly blameworthy as placed applicant and employer in disreputable light, attracting 50 percent contributory conduct – Equity and good conscience jurisdiction - Applicant under obligation to correct S’s error of under charging food to ensure employer received full payment – Amounted to serious breach of employment agreement – Authority noted that employment relationship problem starting with small fast food order should have been settled by parties, particularly as evidence pointed to misjudgement rather than deliberate deceit - Consistent with Authority’s equity and good conscience jurisdiction, no remedies to be awarded – As agreed by parties, costs reserved - Subject to submission, preliminary view that costs lie where they fall - Fast food worker |
| Result | Application granted ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Honda NZ Limited v Shipwrights etc Union [1989] 2 NZILR 82 |
| Number of Pages | 12 |
| PDF File Link: | wa 165_08.pdf [pdf 39 KB] |