| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 345/10 |
| Determination date | 02 August 2010 |
| Member | D King |
| Representation | A Bendall ; C Meechan |
| Location | Auckland |
| Parties | Peake v Pernod Ricard New Zealand Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed dismissal unjustified – Respondent argued applicant’s misconducts sufficiently serious to justify dismissal – Applicant convicted of drunk driving resulting in loss of drivers licence – Respondent discovered applicant failed to disclose drink driving convictions – Employment agreement (“EA”) provided in event employee’s licence suspended or withdrawn, employment relationship may be terminated – First disciplinary meeting held – Applicant advised respondent would obtain temporary licence – Respondent concluded final written warning warranted despite concern applicant had “cavalier” attitude towards matter – Warning provided failure to follow lawful and reasonable instructions or further instances of misconduct may lead to dismissal – Applicant requested to read and sign warning – Applicant signed warning without reading it – Applicant claimed warning unjustified as had no representative when warning signed – Authority found applicant declined support personal when first notified of disciplinary meeting – Found in any event, grievance not raised within time – Applicant continuously failed to follow lawful and reasonable instructions relating to non-smoking rules – Applicant given written instructions to spray grapes – Applicant failed to read instructions and used wrong spray – Second disciplinary meeting held for applicant to answer serious misconduct allegations – Respondent alleged applicant’s failure to use correct spray constituted gross negligence - Parties discussed allegations of wilful damage to property, smoking and failure to follow lawful instructions – Applicant dismissed for serious misconduct and required to move out of respondent’s property – Applicant claimed decision to move applicant out of property caused disadvantage – Authority found grievance not raised within time – Applicant claimed predetermination – Found no evidence to support claim – Found disciplinary process less than ideal as respondent failed to particularise allegations – Found wilful property damage allegations unsupported – Found however, dismissal substantively justified as conclusion applicant’s failure to exercise proper care in using spray constituted serious misconduct reasonable – Found respondent entitled to dismiss applicant on spray incident alone as it was “dereliction of duty” – Found despite procedural imperfections, dismissal justified overall – COUNTERCLAIM – Recovery of monies – Respondent counterclaimed for $2,698 damage to property – Authority found insufficient evidence to establish liability for damage however, entitled to $555 for wasted spray – Applicant ordered to reimburse respondent $550 |
| Result | Applications dismissed ; Counterclaim partially granted ; Recovery of monies ($550)(Wasted spray) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Angel & Anor v Fonterra Co-operative Group [2006] ERNZ 1080;Chief Executive of Unitech Institute of Technology v Henderson [2007] 4;NZELR 418;Masonry Design Solutions Limited v Bettany unreported, Colgan CJ, 21 Aug 2009, AC 30/09 |
| Number of Pages | 14 |
| PDF File Link: | aa 345_10.pdf [pdf 40 KB] |