| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 15/09 |
| Hearing date | 4 Dec 2008 |
| Determination date | 13 February 2009 |
| Member | H Doyle |
| Representation | S McRae ; no appearance |
| Location | Christchurch |
| Parties | McCloy v Smith Crane & Construction Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious misconduct – No appearance for respondent – Applicant claimed false allegations of theft caused disadvantage – Applicant claimed subsequently unjustifiably dismissed – Applicant used steel from workshop to make equipment for personal use – Applicant dismissed for theft with no opportunity for explanation – Respondent argued applicant admitted to theft in meeting - Respondent argued dismissal justified because theft serious misconduct in employment agreement (“EA”) – Applicant claimed no meeting took place – Applicant’s evidence of events preferred - Authority found unjustified disadvantage and dismissal – Found respondent unable to prove fair investigation disclosed conduct as serious misconduct – Found no notice of allegations and opportunity for explanation – Found conclusion of theft not warranted if respondent followed correct procedure – Found applicant used material from scrap pile, intended to bring material back and work begun few minutes before finish time – Disadvantage unjustified – Dismissal unjustified - REMEDIES – 20 percent contributory conduct - No authorisation sought to use material – Reimbursement of 7 weeks lost wages - $10,000 compensation appropriate - Found dismissal impacted on applicant’s emotional wellbeing and respondent failed to reduce applicant’s humiliation after dismissal - PENALTY – Applicant sought penalty for breach of EA – Authority declined penalty - COSTS – Found reasonable contribution to costs of $2,000 appropriate - Found respondent’s failure to attend mediation or advise of procedural difficulties to applicant contributed to costs – Costs in favour of applicant – Workshop Labourer |
| Result | Applications granted (Unjustified disadvantage)(Unjustified dismissal) ; Application dismissed (Penalty) ; Reimbursement of lost wages ($2,705.58) ; Compensation for humiliation etc ($10,000 reduced to $8,000) ; Costs in favour of applicant ($2,000) ; Disbursements in favour of applicant ($70.00)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | NZ (with exceptions) Food processing etc IUOW v Unilever [1990] 1 NZILR 35 |
| Number of Pages | 11 |
| PDF File Link: | ca 15_09.pdf [pdf 45 KB] |