| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 220/09 |
| Hearing date | 22 Sep 2009 |
| Determination date | 21 December 2009 |
| Member | P Cheyne |
| Representation | D Beck ; M Hodges |
| Location | Christchurch |
| Parties | Wilkinson v Saxon Appliances Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant dismissed following discovery of voice message left by co-worker on applicant’s work cellphone requesting drugs – General manager (“T”) put allegation directly to applicant, then played recording following applicant’s initial denial – Applicant admitted selling or giving two tinnies previous year – T interviewed co-worker – Applicant suspended following day – Further meeting held - Applicant dismissed - Authority found respondent did not give applicant notice of allegation and likely consequences, or allow opportunity for applicant to obtain representation – Authority rejected respondent’s argument that meetings not disciplinary – Found circumstances of suspension showed element of predetermination of dismissal – Found respondent wrongly refused to provide applicant with copies of notes of initial meeting, where notes relevant to dismissal decision – Found decision to dismiss was shared, and applicant had no reasonable opportunity to explain self to one of decision-makers – Found respondent considered material factor that applicant sold drugs at workplace, but failed to properly establish transaction took place at workplace – Found no mention in employment agreement of “zero tolerance policy” referred to in suspension letter – Found no good evidence applicant’s conduct outside of work had adverse consequences on work – Dismissal unjustified – Found insufficient evidence in subsequent allegations – REMEDIES – No contributory conduct – Evidence of loss of confidence, irritability, poor sleep, minor health issue and financial difficulties - Moderate compensation of $6,000 appropriate – Three months’ reimbursement of lost wages appropriate – Found actual loss of wages apparently larger but insufficient detail provided – PENALTY - Applicant sought penalty for breach of good faith obligations – Authority found breaches of good faith relating to disciplinary action were not about respondent intending to undermine employment relationship – Penalty declined - Technicia |
| Result | Application granted (dismissal) ; Application dismissed (penalty) ; Reimbursement of lost wages (3 months) ; Compensation for humiliation etc ($6,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s128(2) |
| Cases Cited | Smith v Christchurch Press Company Limited [2000] 1 ERNZ 624;NZ (with exceptions) Food Processing etc IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35 |
| Number of Pages | 11 |
| PDF File Link: | ca 220_09.pdf [pdf 38 KB] |