| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 172/09 |
| Hearing date | 28 Oct 2009 |
| Determination date | 05 November 2009 |
| Member | D Asher |
| Representation | G Tayler ; M Tobin (in person) |
| Location | Napier |
| Parties | Rochfort v MVT Services Ltd & Anor |
| Other Parties | Tobin |
| Summary | UNJUSTIFIED DISMISSAL – Seasonal fixed term employment – Respondent argued applicant dismissed for serious misconduct in reliance on several earlier warnings – Argued raised concerns about applicant’s work performance because of apparent effects of drugs and alcohol – Applicant denied allegations claiming surprised by dismissal – Credibility finding in favour of applicant – Employment agreement (“EA”) provided summary dismissal for serious misconduct, with zero tolerance for drug related incidents – Respondent provided several examples of where alleged applicant found using drugs or alcohol, or applicant arrived at work smelling of drugs or alcohol – Respondent argued final incident where alleged smelled alcohol on applicant decided to dismiss as provided enough warnings – Authority found not credible employer who set out no tolerance for drug related incidents in EA would permit serial serious misconduct – Found not probable respondent would have applicant work in condition when not productive and serious health and safety risk – Found unlikely given earlier serious misconduct warnings that employer would permit repeat offender to work out day before making dismissal – Found respondent’s claims not supported by documentation or witnesses – Found respondent’s credibility undermined by admitted actions of deliberately not paying applicant’s final pay by direct credit as required by EA – Dismissal unjustified – Remedies – Authority found by applicant’s own account dismissed for lying – Authority assessed applicant’s contributory conduct at 50 percent – Found $3,000 compensation appropriate after reduction – Respondent to pay applicant reimbursement of lost wages until date found new employment – PENALTY – Authority found respondent to pay applicant $1500 penalty for withholding final pay and lateness in providing timesheets – Fruit picker |
| Result | Application granted ; Reimbursement of lost wages ($1,283.00) ; Compensation for humiliation etc ($6,000 reduced to $3,000) ; Penalty ($1500 payable to applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Wages Protection Act 1983 s130;Wages Protection Act 1983 s128(2);Wages Protection Act 1983 s130(2);Wages Protection Act 1983 s133 |
| Cases Cited | Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 8 |
| PDF File Link: | wa 172_09.pdf [pdf 22 KB] |