| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 193/09 |
| Hearing date | 17 Nov 2009 - 18 Nov 2009 (2 days) |
| Determination date | 11 December 2009 |
| Member | D Asher |
| Representation | A Gallie ; B Buckett |
| Location | Wellington |
| Parties | Nepe-Apatu v Te Kohanga Reo National Trust |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent knew applicant patched member of Mongrel Mob when employed - Applicant accepted fought with partner of senior manager and directed abusive and obscene language at them - Applicant claimed provocation and self defence - Respondent authorised report into applicant and conduct of manager - Report found widespread concerns about applicant’s swearing and intimidatory behaviour, ability to fulfil role, and perception used position to unfairly advance interests of domestic partner - Report confirmed applicant being undermined by senior manager - Parties met and reached confidential understanding - Agreed future performance concerns would be raised with applicant’s brother in first instance - Applicant called to meeting when respondent continued to have concerns about applicant - Respondent claimed applicant left during break in meeting leaving resignation letter - Authority found applicant did not resign rather believed employment at end and sought written statement of respondent’s position - Authority found applicant given no notice of complaints, no opportunity to be represented, no notice dismissal an option or opportunity to participate in investigation - Found respondent breached employment agreement - Found respondent in breach of undertaking to arrange mediation - Found respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - Authority found applicant significantly contributed to situation giving rise to personal grievance - Found clear record, not disputed by applicant, of applicant’s swearing, poor judgment and inappropriate conduct - Found 50 percent contributory conduct - Found reinstatement not practicable - Found repeat of same problems foreseeable - Applicant on unemployment benefit - Found applicant raised grievance and sought resolution promptly - Six months reimbursement of lost wages reduced to 3 months awarded - Applicant gave strong but unsupported evidence of distress caused by dismissal - Authority measured applicant’s distress against overall demeanour, acknowledgment of fault and attempt to mislead Authority - Award of $18,000 reduced to $9,000 appropriate - District Manager |
| Result | Application granted ; Reimbursement of lost wages (6 months reduced to 3 months) ; Compensation for humiliation etc ($18,000 reduced to $9,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s128(3) |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185 |
| Number of Pages | 12 |
| PDF File Link: | wa 193_09.pdf [pdf 67 KB] |