| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 25/09 |
| Hearing date | 11 Jul 2008 |
| Determination date | 03 March 2009 |
| Member | J Crichton |
| Representation | S Tait ; D Wood |
| Location | Christchurch |
| Parties | McWhinnie v Avondale Golf Club Inc |
| Summary | UNJUSTIFIED DISMISSAL – Misconduct – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably dismissed following series of unjustified actions causing disadvantage – Respondent claimed serious misconduct and gross insubordination – First employment agreement (“EA”) provided for authorised overtime hours to be paid at penal rate – Applicant claimed $17,305 owed as unpaid overtime – Club President (“P”) offered $1,500 as contribution to overtime – Second EA provided all authorised overtime hours to be paid at ordinary rate – Applicant injured arm and was required to take leave – During applicant’s absence, P asked applicant for password to programme – Authority preferred P’s evidence that applicant refused and hung up – Applicant claimed password was own “personal” property - Applicant returned to work two weeks later and informed of disciplinary meeting – Respondent had earlier passed a motion of no confidence in applicant - Applicant advised at meeting of dismissal on grounds of “gross insubordination” in respect of applicant’s treatment towards P – P asked applicant to resign or be dismissed – Applicant did not accept either option - Mediation held and applicant suspended on full pay - Respondent later discovered applicant received unauthorised payments of $32,338 – Applicant claimed respondent knew about payments therefore had implied authorisation – Respondent claimed no authorisation given – Authority found conclusion of gross insubordination reasonable however dismissal procedurally unjustified – Found password provided to applicant for work purposes only and respondent had proprietary right to password - Found no opportunity for explanation and no warning given – Found respondent predetermined dismissal before disciplinary meeting – Found alternatively applicant constructively dismissed at second meeting - Dismissal unjustified - Found suspension and respondent’s immediate request for applicant to take leave due to injury caused unjustified disadvantage – Disadvantage unjustified – REMEDIES – Found 100 per cent contributory conduct – Found no evidence respondent authorised payments – Found respondent not aware of unauthorised payments at time of dismissal however law does not allow wrong-doer to benefit from their wrong – ARREARS OF HOLIDAY PAY – Authority found arrears due and owing - Respondent to pay arrears of holiday pay – Administrator |
| Result | Applications granted ; Arrears of holiday pay ($2,095) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Salt v Fell [2008] ERNZ 155 |
| Number of Pages | 14 |
| PDF File Link: | ca 25_09.pdf [pdf 44 KB] |