| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 471/10 |
| Hearing date | 13 Sep 2010 |
| Determination date | 04 November 2010 |
| Member | R A Monaghan |
| Representation | Q Unsworth (in person) ; B Wall |
| Location | Rotorua |
| Parties | Unsworth v Orakei Korako Geyserland Resort (2000) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Respondent argued applicant’s dismissal justified after failed to report for work after leave request declined against background of accumulated misconduct – Incidents where applicant failed to provide medical certificates – Sick leave provision in employment agreement (“EA”) obliged employees to provide medical certificates – Respondent concerned applicant not genuinely ill, as acknowledged visited friend during time off – Applicant denied being asked for medical certificate and claimed thought obvious was ill – Subsequently, incident where argument developed after respondent told applicant did not believe was ill – Respondent told applicant if did not attend work that day need not attend work on Monday – Respondent discussed previous incidents with applicant – Respondent argued informed applicant could resign or be dismissed – Applicant refused to resign so dismissed – Letter of dismissal stated applicant’s failure to report to work contrary to respondent’s instructions, broke bond of trust and confidence – Authority found respondent had reason for suspicion when applicant reported sick – Found respondent knew applicant dissatisfied with limitation on weekends off and wished to attend coffee festival same day – Found respondent not excused from conducting investigation regarding absence – Found respondent should have taken more time to make enquiries about applicant’s activities and question applicant more carefully – Found respondent wrong to state applicant exceeded sick leave entitlement – Found respondent wrong to state applicant breached requirement in EA regarding reporting of absence on sick leave – Found applicant’s absence not investigated and no admission – Found respondent relied on nothing more than own disbelief – Found not enough information to form reasonably held view applicant not ill, therefore failure to report to work could not be characterised as failure to follow lawful and reasonable instruction – Found dismissal unjustified – REMEDIES – Found applicant’s evidence not indicative of any loyalty – Found applicant’s comments concerning former colleagues supported view relationships dysfunctional – Found applicant in general disaffected and uncooperative – Found applicant’s undermining conduct such that respondent’s trust in applicant to exercise right to take sick leave honestly seriously impaired on reasonable grounds – Found remedies to be reduced appropriately as contributory conduct established – Found $1,000 compensation appropriate – Found respondent ordered to pay applicant $1,200 reimbursement of lost wages – Boat driver/Office administration/Shop assistant |
| Result | Application granted (Dismissal) ; Reimbursement of lost wages (Reduced to $1,200) ; Compensation for humiliation etc (Reduced to $1,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Bragg v Ocean Beach Freezing Co Limited [1985] ACJ 249;Griffith v Sunbeam Corporation Limited, unreported, Couch J, 28 July 2006, WC 13/06 |
| Number of Pages | 11 |
| PDF File Link: | aa 471_10.pdf [pdf 36 KB] |