| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 184/10 |
| Hearing date | 22 Mar 2010 |
| Determination date | 23 April 2010 |
| Member | D King |
| Representation | J Zhang ; T Kurta |
| Location | Auckland |
| Parties | Zhang v Sam's Fukuyama Food Service Ltd |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE – Applicant claimed breach of company rules not sufficiently serious to justify dismissal – Respondent argued applicant consistently failed to follow lawful instructions therefore dismissal justified – Poster outlining correct rules to follow posted in visible area of workplace – Rules consistent with Land Transport Act 1998 – Rules provided drivers lawfully allowed to work maximum 13 hours per day – Provided safety boots worn at all times - Applicant received first written warning for poor performance and breach of rules – Applicant disputed warning – Advised respondent did not alert applicant to rule changes – Advised rules required applicant to work more than 13 hours per day – Respondent responded warning stood and if applicant had issues with rules, to notify respondent – Applicant received second written warning for failure to act responsibly as driver and complete work within reasonable time – Warning notified dismissal possible – Applicant consistently failed to wear safety boots – Respondent prepared dismissal letter – Respondent requested meeting to discuss safety boots issue – Applicant saw dismissal letter on desk and asked if dismissed – Respondent advised would dismiss if applicant continued to breach rules – Applicant replied “You fired me only for this little thing – Personal grievance raised – Authority found dismissal letter prepared because applicant failed to follow lawful instructions – Found applicant asserted would continue to breach rules because believed rule to wear safety boots insignificant – Found respondent dismissed applicant after admission made – Found dismissal substantively justified as applicant knew rules must be followed - Found dismissal procedurally unjustified as disciplinary process provided in employment agreement not followed –Dismissal unjustified – Found no disadvantage as applicant at least had notice of rules – REMEDIES – Found 100 percent contributory conduct as applicant’s failure to follow lawful instructions caused dismissal – Declined lost wages award as applicant would have been dismissed if proper process followed – ARREARS OF WAGES – Applicant sought arrears of wages for being sent home early without notice – Authority ordered respondent to pay applicant $82 arrears of wages – Truck Driver |
| Result | Application granted (Arrears of wages) ; Applications dismissed (Unjustified dismissal)(Unjustified disadvantage) ; Arrears of wages ($82.50) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Land Transport Act 1998 |
| Number of Pages | 8 |
| PDF File Link: | aa 184_10.pdf [pdf 27 KB] |