| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 422/09 |
| Hearing date | 19 Nov 2009 |
| Determination date | 25 November 2009 |
| Member | R Arthur |
| Representation | T Kurta ; M Robins |
| Location | Auckland |
| Parties | Taylor v Underground Network Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed dismissal for serious misconduct unjustified and unfair treatment – Respondent argued disobedience, argumentative behaviour, failing to follow instructions and refusal to acknowledge wrongdoing amounted to serious misconduct warranting instant dismissal – Argued applicant treated fairly and followed proper procedures – Applicant left workplace with co-worker (“H”) on “joyride” and returned 40-80 minutes late – Altercation occurred between applicant, H and supervisor (“T”) regarding issuing of verbal warning – T instructed applicant to stop duties - Applicant declined instructions and threw soil at T’s feet - Respondent’s manager (“D”) instructed applicant to stop working and discussed why applicant declined T’s instructions – D advised applicant throwing soil at H’s feet “threatening” and directly challenged T’s authority – Disciplinary meeting held – Applicant and H advised to bring support person – Advised matter serious – Applicant explained left workplace because had health and safety concerns regarding working in manhole on own – Explained left workplace during lunch break – Respondent concluded applicant’s explanations inadequate as no health and safety risks involved in work duties and lunch break only 30 minutes – Respondent adjourned meeting and advised applicant would issue written warning if applicant apologised – H apologised and not dismissed - Applicant refused to apologise – Respondent gave applicant final opportunity to apologise – Applicant dismissed for serious misconduct – Authority found procedures followed fair and reasonable – Found no unfair treatment as H apologised and applicant did not - Found conduct did not constitute serious misconduct under respondent’s rules - Found applicant did not fail to do required work, but failed to do work when expected – Found unauthorised leaving of workplace deliberate but lacked open defiance within meaning of “refusal” in rules – Found conduct within meaning of misconduct warranting written warning under rules – Found respondent identified conduct as “wasting time and irresponsible behaviour”, not refusal to follow instructions – Found refusal to follow instructions allegation not put to applicant - Found applicant’s overall conduct did not amount to serious misconduct – Dismissal unjustified – REMEDIES – Found reinstatement not appropriate as parties unable to re-establish productive employment relationship - Found 50 percent contributory conduct for leaving workplace, being argumentative, and uncooperative – Found applicant failed to mitigate loss therefore reimbursement of eight weeks lost wages warranted – $5,000 compensation appropriate – Labourer |
| Result | Application granted ; Reimbursement of lost wages (Eight weeks reduced to four weeks)(Quantum to be determined) ; Compensation for humiliation etc ($5,000 reduced to $2,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s128 |
| Cases Cited | Air New Zealand v Hudson [2006] ERNZ 415;Air New Zealand v V (2009) 6 NZELR 582 (EC);New Zealand Food Procession Workers’ Union v Unilever Ltd [1990] 1 NZILR 35 |
| Number of Pages | 10 |
| PDF File Link: | aa 422_09.pdf [pdf 34 KB] |