| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 36/02 |
| Hearing date | 12 Mar 2002 - 5 Apr 2002 (5 days) |
| Determination date | 07 May 2002 |
| Member | P R Stapp |
| Representation | M Gittings, M Kirkness, K Sayring ; P & L Beitchef (in person) |
| Location | Wellington |
| Parties | Kirkness and Anor v P & L Beitchef t/a Next Electronics and Alarm Security |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Alleged unauthorised possession of company property - Video surveillance - Asked to attend meeting - Required to sign questionnaires regarding property - Allegations of theft raised - Subsequently absent due to work related stress and in protest to surveillance - Private investigator hired - Searched first applicant's locker - Dismantled second applicant's work computer - Applicants walked out of second meeting on revelation of searches - Dismissed via letters signed by respondent partner not present at meeting - Failure to provide report or afford opportunity for explanation - Not enough evidence to establish theft allegations - Dismissal procedurally unfair and substantively unjustified - Remedies - Applicants on sick leave throughout process - No guarantee they would have returned to work - No reimbursement available - Contributory conduct - Failure to clarify ownership contributed to situation - Compensation reduced by 50 percent - ARREARS OF WAGES AND HOLIDAY PAY - Alleged failure to pay sick leave, long service leave, holiday pay and superannuation entitlements - Long service leave not a contractual right - Respondent as new owner unaware of superannuation agreement - Applicants conceded had accepted respondent would not contribute - Arrears of sick leave and holiday pay established - Counterclaim for damages dismissed |
| Result | Application granted ; Compensation for humiliation etc ($3,000 reduced to $1,500)(MK) ; ($2,000 reduced to $1,000)(KS) ; Arrears of wages and holiday pay ($2441.90)(MK) ; ($3,039.50)(KS) ; Costs in favour of applicants ($70) |
| Cases Cited | Drummond v Coca Cola Bottlers NZ [1995] 2 ERNZ 229;Honda NZ Ltd v NZ Boilermakers' etc Union [1990] 3 NZILR 23; (1990) ERNZ Sel Cas 855 ; [1991] 1 NZLR 392;NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 ; ERNZ Sel Cas 582;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 ; [2001] 3 NZLR 29 |
| Number of Pages | 19 |
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