| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 438/08 |
| Hearing date | 14 Oct 2008 |
| Determination date | 23 December 2008 |
| Member | V Campbell |
| Representation | M Chambers ; A Mackay |
| Location | Hamilton |
| Parties | Dempsey v Waikato Drycleaners (1983) Ltd |
| Summary | JURISDICTION – Applicant dismissed after respondent informed by client that applicant had criminal record, was taking action against former employer and interviewed with another employer prior to starting with respondent – Client told respondent that did not want applicant at work site – Applicant claimed was summarily dismissed for being dishonest, untruthful and lying to respondent – Respondent argued applicant not employee because never commenced work – Alternatively argued dishonesty justified dismissal – Applicant completed employment form where asked to disclose criminal convictions and whether awaiting hearing “of any charges in a civil or criminal Court of law” – Applicant answered “No” to both questions – Also left gap in form which requested information about current and previous employment – Respondent argued employment offered subject to everything “checking out ok” – Applicant provided with employment agreement (“EA”) already signed by respondent – Authority concluded EA made no mention that offer subject to everything checking out – EA signed but not returned to respondent – Authority satisfied applicant “a person intending to work” under s6 ERA – Authority’s conclusion supported by evidence that agreed start date confirmed and applicant already sized for company shirt – Applicant an employee – UNJUSTIFIED DISMISSAL – Authority found upon signing EA applicant attesting aware employed on answers provided and if in respondent’s opinion questions not answered truthfully or completely employment could be terminated without notice – Authority found had respondent enquired into where client obtained information about applicant then would have revealed applicant long time member of client’s club and consequently regularly on client’s premises – Applicant called to meeting on first day and told information received from client – Respondent put to applicant that dishonest when listing previous employment for prior year – Applicant acknowledged employment not disclosed and that at time application completed, applicant taking action for unpaid wages – Authority found had respondent taken time to check information provided by applicant then would have seen gap pertaining to employment – Found applicant did not provide false dates of employment – Found respondent could have questioned applicant about gap in information prior to offer of employment – Also found respondent wrongly concluded claim against previous employer same as applicant awaiting the hearing of charges in a criminal or civil Court – Authority satisfied applicant did not knowingly withhold relevant information as mistakenly believed disclosure not required under Criminal Records (Clean Slate) Act 2004 – Respondent’s refusal to disclose name of client meant applicant unable to advise respondent that was member of client’s club and visited site for social reasons – Calling applicant to disciplinary meeting without warning that dismissal imminent procedurally unfair – REMEDIES – Authority found applicant failed to provide full and complete employment details when obligated to – Prudent employee would have checked legal obligations before deciding not required to disclose previous criminal conviction – Contributory conduct 50 percent – $1000 compensation appropriate – Driver/Customer Service |
| Result | Application granted ; Reimbursement of lost wages ($2160) ; Compensation for humiliation etc ($2000 reduced to $1000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s5;ERA s6;ERA s124;Criminal Records (Clean Slate) Act 2004 |
| Number of Pages | 8 |
| PDF File Link: | aa 438_08.pdf [pdf 37 KB] |