| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 166/09 |
| Hearing date | 9 Feb 2009 |
| Determination date | 25 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 positions would be disestablished, new positions would be advertised and selection process entered into - Authority satisfied applicant participated fully in consultation meeting - Respondent notified all staff by letter that following through with restructure - Respondent engaged Mystery Shopper - As a result applicant asked to attend disciplinary meeting to discuss allegation accepted bottle of whiskey rather than cash payment for dumping refuse - Applicant’s lawyer advised date not suitable as day applicant returning from leave overseas - Respondent changed date and advised applicant being suspended without pay - Applicant advised respondent that did not believe would get fair hearing in disciplinary meeting so declined to attend - Also advised considered letter informing him of plans to restructure was notice of termination of employment - Respondent accepted letter as letter of resignation - Authority found applicant not dismissed by respondent - Found letter advising staff of restructure did not amount to letter of termination - Found applicant resigned rather than face disciplinary enquiry - No dismissal - UNJUSTIFIED DISADVANTAGE - Authority used statutory powers to consider whether applicant unjustifiably disadvantaged by suspension - Applicant’s employment agreement provided for suspension but required respondent discuss before making decision - No discussion before applicant suspended - Authority found respondent’s actions procedurally unfair and substantially unjustified - Suspension unjustified - Remedies - Applicant did not lose any wages due to unjustified suspension - Applicant’s evidence of hurt and humiliation compelling but mainly related to misapprehension had been dismissed - $1,000 compensation appropriate - 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) ; Compensation for humiliation etc ($1,000) ; Recovery of monies (Counterclaim) ($7,518) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s160(3) |
| Number of Pages | 10 |
| PDF File Link: | aa 166_09.pdf [pdf 41 KB] |