| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 175/10 |
| Hearing date | 4 Aug 2010 |
| Determination date | 02 September 2010 |
| Member | J Crichton |
| Representation | C Corlett ; T Tweed, J Stringer |
| Location | Oamaru |
| Parties | Slemint v North Otago Transport Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant summarily dismissed following threat to report respondent to Land Transport Safety Authority (“LTSA”) for log book offences - Applicant claimed owed meal allowance for whole period of employment - Applicant produced employment agreement (“EA”) containing meal allowance provision in evidence - Respondent claimed did not provide EA - Claimed meal allowance provision crossed out of other employees EA’s and had discussion with applicant where agreed meal allowance not payable - Authority found neither party had signed portion of EA concerning wages - Found proper construction of EA that guide to general elements of employment only - Found not satisfied parties agreed to meal allowance - Applicant’s claim for meal allowance struck out - For approximately one month before dismissal respondent increasingly concerned that applicant’s overtime claims excessive - Respondent’s managing director (“X”) spoke to applicant about concerns - Applicant given handwritten note setting out requirements for dealing with overtime claims - X asked to see applicant’s diary entries to justify overtime claims - Applicant refused to give X diary as believed personal property but undertook to provide photocopies - Next day respondent’s yard manager (“Y”) gave applicant list of dates to produce diary entries for - Applicant allegedly told Y “that if [X] wants to play this game, I should report the company to the Land Transport Safety Authority for logbook offences” - X advised about comment - Three days later respondent rung applicant to enquire where diary pages were - Applicant promised to give diary entries to applicant following day - Applicant claimed when arrived at work following day X barely scanned diary entries or attempted to discuss them rather told applicant was threat to company and dismissed him - Respondent claimed looked at diary entries and told applicant entries could not justify hours claimed as many blank - X claimed applicant denied making threat to Y when questioned about it - Claimed applicant became agitated, began pointing at X’s chest, claimed all evidence in diary and said “you’re in the gun for all of this” - X considered applicant trying to blackmail respondent into paying applicant overtime had not worked by threatening to report respondent to LTSA - Applicant acknowledged made threat but sought to make light of it - Respondent’s evidence preferred - Authority found was situation where single act of employee completely overwhelmed subsisting trust and confidence that must exist between employee and employer - Found kind of situation where employer left with little choice but to summarily dismiss - Dismissal justified - ARREARS OF WAGES AND HOLIDAY PAY - Authority satisfied applicant short paid wages for last week of employment - Satisfied applicant did work hours claimed - Respondent to pay applicant wages owing - Authority satisfied applicant short paid holiday pay - Respondent to pay applicant outstanding holiday pay - Truck Driver |
| Result | Application dismissed (Unjustified dismissal) ; Application granted (Arrears of wages and holiday pay) ; Arrears of wages ($174.38) ; Holiday pay ($595.88) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 ; [2001] 3 NZLR 29 |
| Number of Pages | 9 |
| PDF File Link: | ca 175_10.pdf [pdf 34 KB] |