| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 83/10 |
| Hearing date | 29 Sep 2009 |
| Determination date | 23 February 2010 |
| Member | V Campbell |
| Representation | W Macphail ; S Clews |
| Location | Auckland |
| Parties | Foote v James and Anor |
| Other Parties | James |
| Summary | UNJUSTIFIED DISADVANTAGE – Workplace bullying – Applicant claimed bullied by farm manager (“H”) – Applicant claimed advised respondents of issues then lodged formal complaint with Police because respondents failed to address issues – Applicant sustained injury when required to work in conditions applicant considered dangerous – Applicant laid statement with Police claiming H grabbed applicant by sleeve and H threw buckets of water over applicant – Applicant also claimed suffered stress as required to work for weeks without time off – Authority found when respondent made aware of issues, acted swiftly to investigate complaints, put processes in place to monitor issues and ultimately took steps to separate workers – No unjustified disadvantage - PENALTY – Applicant claimed no employment agreement (“EA”) provided – Authority found documents outlining terms and conditions of employment met requirements of s65 Employment Relations Act 2000, except no plain language explanation of services available for employment relationship problem resolution – Applicant claimed breach of EA by failure to provide meat, increase salary and give weekends off - Authority found applicant had not received side of beef despite entitlement in EA – Authority ordered penalty of $150 payable to applicant for breach of EA – Found increase in salary provisional on performance, so no breach – Found on facts applicant received weekends off as provided for in EA, so no breach - ARREARS OF WAGES – Applicant claimed paid below minimum wage when compared salary to hours actually worked – Applicant claimed did not record work times as requested by respondent because did not have watch and Department of Labour advised not to sign anything – Authority found common ground that applicant’s finishing times flexible and depended on finishing tasks – Found applicant not satisfied onus to make out claim - UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant dismissed following respondent’s conclusion applicant mistreated cow and left milking herd and dry stock without water for day – At disciplinary meeting, applicant’s version of events largely confirmed respondent’s opinion – Authority found no disparity of treatment in other employees not being dismissed following stock deaths, because applicant dismissed for causing unnecessary death of animal – Found applicant had already received two warnings – Found respondent carried out full and fair investigation which disclosed serious misconduct – Dismissal justified - Assistant Farm Manager |
| Result | Application granted (penalty) ; Applications dismissed (unjustified dismissal)(unjustified disadvantage)(arrears of wages) ; Penalty ($150)(payable to applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s65;ERA s103A;ERA s133;ERA s134 |
| Cases Cited | Air New Zealand v Hudson [2006] 1 ERNZ 415;Bilkey v Imagepac Partners, unreported, Colgan J, 7 Oct 2000, AC 65/02;Mason v Health Waikato [1998] 1 ERNZ 84;McCosh v National Bank, unreported, Colgan J, 13 Sep 2004, AC 49/04;NZ Storeworkers IUW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452;Toll New Zealand Consolidated Ltd v Rowe, unreported, Shaw J, 19 Dec 2007, AC 39A/07;X v Auckland District Health Board [2007] 1 ERNZ 66 |
| Number of Pages | 11 |
| PDF File Link: | aa 83_10.pdf [pdf 46 KB] |