| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 265/09 |
| Hearing date | 30 Jul 2009 |
| Determination date | 06 August 2009 |
| Member | V Campbell |
| Representation | S Scott ; R Kung |
| Location | Auckland |
| Parties | Dryland v Kung Brothers Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Credibility finding in favour of respondent - Respondent’s evidence preferred - Applicant failed to return to respondent’s property in time to complete afternoon milking - When respondent rang applicant to enquire as to whereabouts informed applicant’s car had run out of petrol and so unable to return to work - That evening applicant rang respondent to enquire whether still had job - Respondent assured applicant still had job but requested meeting next morning - At meeting respondent told applicant unhappy with performance - Applicant had previously been unhappy about ray rate - Respondent asked applicant if still serious about working for him - Applicant replied did not want to work for “sh*t money” - Applicant then asked respondent if that was the case why was he wasting his time - Applicant said “I know what you f***ken Indian c**ts are like” - Applicant summarily dismissed for using objectionable and racist language - Authority found way applicant spoke to respondent was repudiatory conduct of kind fair and reasonable employer would consider constituted serious misconduct - Authority found dismissal carried out in absence of procedural fairness - Authority concluded circumstances not such where respondent entitled to act without further enquiry - Dismissal unjustified - Remedies - Authority found respondent correct in concluding offensive comments amounted to serious misconduct - Found highly likely applicant would have been justifiably dismissed had respondent followed proper process - No award for reimbursement of lost wages - Authority found applicant’s conduct significantly blameworthy - 100 percent contributory conduct - Authority found applicant would be entitled to award for contribution to costs - Farm worker |
| Result | Application granted ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Amaltal Fishing Company Ltd v Morunga [2002] 1 ERNZ 692;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315;Waitakere City Council v Ioane [2004] 2 ERNZ 194 |
| Number of Pages | 4 |
| PDF File Link: | aa 265_09.pdf [pdf 29 KB] |