| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 6/09 |
| Hearing date | 18 Dec 2008 |
| Determination date | 21 January 2009 |
| Member | P R Stapp |
| Representation | N Wright ; M McPhail |
| Location | Gisborne |
| Parties | Barwick v Leaderbrand Produce Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant summarily dismissed – Employee (“T”) approached applicant and requested lettuce to take home – Applicant gave T permission but did not ask quantity T intended to take – Applicant conceded knew lettuce to be used at party and funeral – Respondent’s owner (“M”) discovered removal of two large sackfuls of lettuce from workplace – Police called but matter not taken further once established permission given by applicant – Respondent argued applicant knew quantity of lettuces taken – Applicant called to meeting with respondents managers – Authority found evidence disputed whether applicant told at meeting worker caught taking two sackfuls of lettuce – Applicant claimed learnt about sackfuls from letter received that day – Later on same day received letter stating actions “theft” and serious misconduct – Applicant suspended without pay – Second meeting held where applicant confirmed evidence at first meeting – M delivered dismissal letter to applicant – Respondent argued applicant changed mind about not knowing quantity of lettuces taken when evidence given at meetings – Respondent concluded applicant lying, not credible and explanation not plausible – Respondent argued applicant over-reaching authority and applicant’s part in matter gave rise to suspicion “complicit in aiding and abetting theft” – Authority accepted “theft” in this context meant unauthorised possession of company product – Authority found respondent had difficulty establishing theft involving applicant directly because no police prosecution and applicant not found in possession of produce – Found no causal link established between applicant giving permission to T, what T alleged to have done, and what T told respondent – Respondent did not tell applicant that considered suspicious applicant lying – Authority found fair and reasonable employer would have given applicant notice of development and time to prepare reply – Authority found only matter with any veracity was allegation applicant over-reached authority – Common ground that amount beyond five lettuces required management approval – Authority found although no prescriptive policy on number of lettuces that could be taken, clear understanding what approvals required for different amounts – Authority not persuaded applicant innocently over-looked company policy – Authority found since applicant knew request for lettuce for use at party and funeral then seriously amiss in not asking quantity required – Found applicant should have referred request to management for approval – Authority to determine whether “over-reaching authority” serious misconduct under Employment Agreement (“EA”) was breach of trust and confidence – Authority found respondent suspicious and relied on own serious misconduct to justify dismissal instead of any particularised term of serious misconduct under EA – Authority found because not enough evidence to establish serious misconduct, applicant had personal grievance – Found at second meeting, when formed belief applicant lying, respondent did not enable applicant to reply or obtain representation – Dismissal unjustified – REMEDIES – Found applicant’s failure to ask worker how much lettuce required serious omission in responsibilities – Found applicant compounded problem by leading respondent to believe was lying – Authority found applicant did know there were two large sacks of lettuce prior to meetings in assessing contributory conduct at 100 percent – Authority concluded applicant grossly negligent – Supervisor |
| Result | Application granted (Unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415;Airline Stewards and Hostesses (NZ) IUOW v Air New Zealand Ltd [1990] 3 NZLR 549;Auckland City Council v Hennessey [1982] ACJ 699;BP Oil NZ Ltd v The Northern Industrial District Distribution Workers IUOW (1989);ERNZ Sel Cas 512 ; (1990) 3 NZELC 97,486 ; [1989] 3 NZILR 276 (CA);Click Clack International Ltd v James [1994] 1 ERNZ 15;Honda NZ Ltd v NZ Shipwrights Union (1990) ERNZ Sel Cas 855; [1990] 3 NZILR;23;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;The Chief Executive of the Department of Corrections v George Imo unreported, Shaw J, 14 November 2007, AC 57/07;The Chief Executive of Unitec Institute of Technology v Henderson unreported, Colgan CJ, 19 March 2007, AC 12/07;X v Auckland District Health Board [2007] 1 ERNZ 66 |
| Number of Pages | 15 |
| PDF File Link: | wa 6_09.pdf [pdf 59 KB] |