| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 378/09 |
| Hearing date | 24 Jun 2009 |
| Determination date | 29 October 2009 |
| Member | M Urlich |
| Representation | R Ingram ; A Rowe, M Bidois9 |
| Location | Auckland |
| Parties | Te Whata v Drive Thru Coffee Ltd |
| Summary | PRACTICE AND PROCEDURE - Applicant claimed not expressly shown fixed term provision in employment agreement – Found s66 Employment Relations Act 2000 did not impose that obligation on employers - Authority satisfied applicant given fair opportunity to peruse proposed employment agreement before entered it and agreement clearly set out as fixed term nature – Found genuine reason for fixed term – Found genuine fixed term employment - UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent made racist and derogatory comments causing her embarrassment - Respondent recalled making general comment about gangs in relation to news item but claimed no offence intended - Authority found insufficient evidence to resolve dispute about nature of comments but likely respondent made off hand comment applicant found offensive – Found no breach of employment agreement amounting to disadvantage- Applicant claimed disadvantaged when required to attend work five minutes before start time – Authority found no unjustified disadvantage – Found applicant’s claim for arrears of wages for early start time not quantified – Leave reserved for applicant to provide further evidence to Authority if parties unable to resolve issue - Applicant claimed required to take lunch break on premises – Respondent claimed applicant agreed to take paid lunch break and so remain on premises – Authority found likely applicant agreed to paid lunch break – Found no evidence applicant claimed entitled to 30 minute lunch break off premises during employment – No unjustified disadvantage – Authority found applicant provided no evidence to support claim worked unpaid overtime – Authority unable to make finding in applicant’s favour - UNJUSTIFIED DISMISSAL – Serious misconduct - Dispute as to exact nature of events leading up to dismissal – In both accounts respondent told applicant in morning would have meeting in afternoon – At meeting respondent put concerns about performance to applicant and asked for comment – Applicant dismissed either at meeting or next day - Authority found on either account no procedural fairness – Found details of respondent’s concerns not fairly put to applicant so unable to provide any explanations – Applicant entitled to notice of meeting and right to bring representative – Respondent attempted to rely on previous warnings to justify dismissal – Authority found warnings respondent attempted to rely on to justify dismissal did not met requirements for formal warnings - Dismissal unjustified - Remedies – Authority found applicant arrived 35 minutes late one day, then two days later called in sick 20 minutes after start time contributed to circumstances leading to dismissal – Found lateness was significant factor in decision to dismiss - Finding of 50 percent contributory conduct - Found applicant attempted to mitigate loss – Found applicant’s fixed term agreement would have expired in 10 weeks – 10 weeks reimbursement of lost wages awarded, reduced to 5 weeks for contribution - Found dismissal had emotional and financial impact on applicant – Applicant ashamed to tell friends and family of dismissal - $2,000 compensation reduced to $1,000 for contribution appropriate – Applicant entitled to opportunity to comment on deduction of money for damage to phone from final pay - Barista |
| Result | Application dismissed (Unjustified disadvantage) ; Application granted (Unjustified dismissal) ; Reimbursement of lost wages (10 weeks reduced to 5 weeks) ; Compensation for humiliation etc ($2,000 reduced to $1,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s66(2)(a);ERA s66(2)(b);ERA s124 |
| Number of Pages | 9 |
| PDF File Link: | aa 378_09.pdf [pdf 34 KB] |