| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 438/09 |
| Hearing date | 24 Nov 2009 |
| Determination date | 08 December 2009 |
| Member | L Robinson |
| Representation | E Hartdegen ; B Rolls |
| Location | Auckland |
| Parties | Carreras v Basani Ltd t/a Claret Restaurant |
| Summary | UNJUSTIFIED DISMISSAL – Directors and shareholders of respondent were husband (“A”) and wife (“B”) – B sent meals back to applicant for correction – Applicant angry, swore at B and loudly banged pots so heard in restaurant – Applicant openly disrespectful and hostile to A about B – A physically assaulted applicant – Respondent argued applicant left saying “f-ing find a new chef” – Applicant sought medical attention and laid Police complaint – Applicant requested mediation – Conflict in evidence – Applicant claimed A advised did not want applicant back – A asked applicant to return keys – Applicant claimed dismissed – Respondent argued applicant resigned – Authority found A aggressor and assaulted applicant causing physical injuries – Found ordinarily employee entitled to regard such conduct by employer as repudiatory – Found applicant did not do so; instead prepared to return to work – Found no resignation - Found A did not and could not reasonably regard statement “find new chef” as resignation – Found before applicant made election whether to affirm or reject A’s repudiatory statement, A asked applicant to return keys – Found this concluded and determined matters, constituting dismissal – Found no good reason for dismissal and no proper process - Dismissal unjustified - Remedies – Found applicant hostile and disrespectful to B - Found swearing and volatile behaviour audible to customers – Found matters known to A were catalyst for violence – Found both men unable to exercise restraint and self-control – 50 percent contributory conduct – Found applicant lost six weeks’ income and successfully mitigated losses – Applicant entitled to $3,590 reimbursement of lost wages – Authority awarded compensation only for losses flowing directly from unlawful termination of employment, not for being assaulted – $2,500 compensation appropriate after reduction - PENALTY – Authority found penalty claim for breach of contract barred by s113 Employment Relations Act 2000 – Authority declined to exercise discretion to award penalty for breach of good faith as wrong already remedied by orders for personal grievance – Penalties declined - BREACH OF CONTRACT – Counterclaim – Respondent sought damages for lost turnover due to resignation without notice – Authority found respondent’s unlawful termination and repudiation of contract relieved applicant of further performance - Found regardless respondent failed to mitigate losses as did not seek compliance with notice period – Respondent alleged applicant breached contract as took new menu – Authority found losses not of applicant’s doing and no factual basis to claim – Counterclaims dismissed - Head chef |
| Result | Application granted (dismissal) ; Applications dismissed (penalty)(breach of contract – counterclaim) ; Reimbursement of lost wages ($7,181.62 reduced to $3,590.81) ; Compensation for humiliation etc ($5,000 reduced to $2,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Number of Pages | 10 |
| PDF File Link: | aa 438_09.pdf [pdf 36 KB] |