| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 162/09 |
| Hearing date | 9 Feb 2009 |
| Determination date | 22 May 2009 |
| Member | V Campbell |
| Representation | M Swarbrick ; G Stone |
| Location | Hamilton |
| Parties | Hooker v Street Smart Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Credibility finding in favour of respondent - Respondent’s evidence preferred - Respondent advised staff of restructuring - Applicant told if restructuring proceeded all current positions would be disestablished, new positions would be advertised and selection process entered into - Authority satisfied applicant participated fully in consultation meeting held - Respondent notified all staff by letter that following through with restructure - Applicant claimed sick and unable to return to work following period of leave - Respondent did not believe applicant genuinely sick and requested medical certificate - Applicant refused to supply certificate - Applicant invited to attend disciplinary meeting to discuss refusal to supply certificate, refusal to obey lawful instruction and lack of respect for manager - Applicant suspended without pay before disciplinary meeting - Applicant did not attend disciplinary meeting - Applicant claimed unjustifiably dismissed through letter advising of restructuring - Authority found applicant’s refusal to attend meetings to discuss absence or bring medical certificate unreasonable - Applicant’s attempt to rely on letter detailing restructuring as notice of termination of employment insincere - Applicant had performed work after received letter - Authority found applicant not dismissed by respondent - Found applicant resigned rather than face disciplinary enquiry - No dismissal - UNJUSTIFIED DISADVANTAGE - Authority used statutory powers to consider whether applicant unjustifiably disadvantaged by suspension - No written employment agreement - No agreement respondent could suspend applicant without pay - No opportunity to discuss suspension before suspended - Authority found respondent’s actions procedurally unfair and substantially unjustified - Suspension unjustified - Remedies - Applicant entitled to reimbursement of wages for period of unjustified suspension - Parties to determine quantum - Applicant’s evidence of hurt and humiliation compelling but mainly related to misapprehension had been dismissed - Award of $1,000 appropriate in circumstances - COUNTERCLAIM - Recovery of monies - Respondent sought recovery of money claimed applicant received as result of unauthorised sale of scrap metal - Applicant claimed had authority of manager to take recycling from mainstream rubbish and sell it - Respondent claimed while practice condoned under previous employer, employees told practice not to continue under respondent’s management - Authority found more likely than not applicant aware was not to sell scrap metal - Authority found money from sale of metals belonged to respondent and therefore recoverable - Respondent provided invoices showing amount applicant received from sale of scrap metal - Applicant told Authority shared proceeds of sale with his brother - Applicant to pay half of amount owing - Recycling Transfer Station Operator |
| Result | Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Arrears of wages (Quantum to be determined by parties) ; Compensation for humiliation etc ($1,000) ; Recovery of monies (Counterclaim) ($7,518) ; Costs reserved |
| Main Category | Recovery of Monies |
| Statutes | ERA s160(3) |
| Cases Cited | GN Hale & Son Ltd v Wellington etc Caretakers etc IUOW [1991] 1 NZLR 151;Simpsons Farms Ltd v Aberhart [2006] 1 ERNZ 825 |
| Number of Pages | 12 |
| PDF File Link: | aa 162_09.pdf [pdf 45 KB] |