| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 13 |
| Hearing date | 2 Dec 2010 |
| Determination date | 14 January 2011 |
| Member | D King |
| Representation | G Finnigan ; P Akbar |
| Location | Auckland |
| Parties | Christiansen v Carol Rasing t/a Chickens 4 U |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed dismissal unjustified and that respondent failed to comply with obligations under Kiwi Saver Act 2006 - Authority found lacked jurisdiction to deal with alleged Kiwi Saver defaults - Applicant dismissed following disciplinary meeting about applicant’s failure to follow lawful and reasonable instruction - Applicant claimed parties agreed applicant would not have to drive last load of the day on following day as feeling fatigued – Respondent denied making agreement - On morning of following day applicant forgot to refuel truck at certain stop and so had to refuel somewhere else – This caused applicant to be late in performing duties - Respondent received incorrect figures for number of live chickens to transport and so had overflow of chickens that needed to be transported – Applicant first truck free to take them - Respondent claimed asked applicant three times to take chickens to factory but applicant refused claiming had agreement would not have to do run and was going Christmas shopping - Applicant finally agreed to take chickens to a depot – Respondent arranged for relief driver to take chickens to factory as could not be left at depot - Parties’ disputed exact nature of exchange with both sides claiming other was angry and using offensive language – Respondent claimed applicant’s aggressive attitude continued with trying to arrange disciplinary meeting – Disciplinary meeting held resulting in applicant’s dismissal - Found applicant made aware of purpose of meeting, right to representative, and possible consequences – Authority found applicant given opportunity to respond to allegations - Authority found no relevant issues of disparity of treatment – Found while applicant subsequently tried to rely on fatigue to explain behaviour did not raise matter at disciplinary meeting and no evidence to support claim - Authority accepted respondent’s evidence did not give express undertaking applicant would not get last load - Authority found instruction given to applicant lawful and reasonable - Found applicant’s refusal constituted wilful and deliberate disobedience – Found wilful misconduct was intentional misconduct - Found failure to obey lawful and reasonable instruction did not justify dismissal automatically in every case – Found test was whether conduct of worker justified dismissal – Found conduct must impair basic trust in employment relationship – Authority found applicant’s behaviour deeply impaired trust essential to employment relationship - Found applicant in situation was because of failure to refuel at appropriate time – Found applicant demonstrated intention to ignore not only respondent’s clear and legitimate instruction but also to disregard animal welfare considerations - Found applicant was abusive to respondent - Dismissal justified - Driver |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Kiwi Saver Act 2006 |
| Cases Cited | NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 ; (1990) 3 NZELC 97,567 ; (1990) ERNZ Sel Cas 582;Samuels v Transportation Auckland Corporation Ltd [1995] 1 ERNZ 462;Sky Network Television Ltd v Duncan [1998] 1 ERNZ 354 |
| Number of Pages | 13 |
| PDF File Link: | 2011_NZERA_Auckland_13.pdf [pdf 40 KB] |