| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 356/09 |
| Hearing date | 22 Jun 2009 |
| Determination date | 08 October 2009 |
| Member | V Campbell |
| Representation | J Parlane ; C Speksnijder |
| Location | Auckland |
| Parties | Hartley v JD & RD Wallace & Avalon Trust t/a Gamma Partnership |
| Summary | ARREARS OF WAGES – BREACH OF CONTRACT – Applicant claimed did not receive all wages due under employment agreement (“EA”) – Applicant previously worked for farm (“D”) owned by respondent – Respondent’s manager (“W”) asked applicant what pay rate with D was – W based applicant’s rate of pay on applicant’s advice – Applicant’s salary increased by $7,000 – After EA signed with respondent, W discovered applicant incorrectly indicated pay from D – W reduced applicant’s rate of pay – Authority noted up to employer to check and ensure rate of pay in EA correct – Respondent argued once W realised salary in EA not same as receiving at D, EA no longer reflected terms agreed between parties – Authority satisfied more likely than not applicant aware salary in EA a mistake and deliberately allowed W to sign EA in state of misapprehension – Authority rejected applicant’s arrears of wages claim and ordered EA be rectified to reflect correct base rate – UNJUSTIFIED DISMISSAL – Applicant referred to co-worker (“C”) as “oi” – Co-worker asked applicant to stop and when applicant continued, C assaulted applicant – Applicant broke free and picked up iron bar to strike C – C hit applicant again knocking bar from grasp – C pushed applicant off 2 metre high rail as applicant leaving area – Applicant suffered bruising to face and split lip – C unscathed – Applicant sent text messages to W saying “I’ll stab him” and C saying “watch ya bak” – W invited applicant to meeting next day – Next day, applicant waited for C to drive past on motorbike and swung iron bar at C but missed – Applicant threw bar towards C hitting motor bike – C complained to W about confrontation and text message – W received text message from applicant saying “fuk da lot of ya” – Applicant questioned at meeting with respondent – Applicant claimed sent messages because did not know what else to do – Respondent decided applicant threat in workplace at conclusion of meeting – Applicant agreed to paid leave until matters resolved – Respondent invited applicant to attend disciplinary meeting – Respondent put to applicant allegations that attacked C and sent abusive text messages – Applicant wrote to respondent stating as meeting already held, second meeting not necessary – Respondent advised meeting required to complete investigation – Applicant sent response through advocate denying allegations – Respondent concluded applicant’s actions constituted serious misconduct – Authority found common sense dictated hitting of co-worker could be serious misconduct justifying dismissal – Authority considered actions of respondent toward applicant in comparison with action taken against C – Authority found decision to issue C warning when C’s misconduct very serious made action to dismiss applicant not action of fair and reasonable employer in circumstances – Found respondent failed to take into account seriousness of attack on applicant by C – Dismissal unjustified – Remedies – Authority found applicant un-cooperative during investigation – Found applicant refused to attend meetings and following dismissal uncooperative and abusive when respondent sought house inspection – Authority satisfied just to reduce remedies available as result of applicant’s conduct – Found applicant entitled to contribution to costs but no other remedy – GOOD FAITH – Applicant claimed respondent failed to treat applicant in good faith when did not follow or offer support after received beating from C – Authority found applicant obliged to treat respondent in good faith – Found applicant breached good faith obligations when flatly refused to attend disciplinary meeting, and when uncooperative and abusive – Claim dismissed – Farm worker |
| Result | Application granted (Dismissal) ; Applications dismissed (Arrears of wages)(Breach of contract)(Good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Contractual Mistakes Act 1977 s6(1)(a);ERA s103A;ERA s124 |
| Cases Cited | Lawrence v Steffert Farms Limited, unreported, [23 May 1997] HC, New Plymouth, AP 21/96;NZ Crippled Children's Society v Vandermolen unreported, Palmer J, 21 August 1992, CEC 36/92;Northern Distribution Union v BP Oil NZ Ltd [1990] 3 ERNZ 483 |
| Number of Pages | 13 |
| PDF File Link: | aa 356_09.pdf [pdf 52 KB] |