| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 14 |
| Hearing date | 9 Nov 2010 - 10 Nov 2010 (2 days) |
| Determination date | 14 January 2011 |
| Member | D King |
| Representation | K Murray ; A Buckland (in person) |
| Location | KeriKeri |
| Parties | Rosenthal v Buckland & Anor t/a Bucky's Diner |
| Other Parties | Buckland |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct - UNJUSTIFIED DISADVANTAGE - ARREARS OF WAGES – Applicant claimed unjustifiably dismissed and owed final pay – Respondents claimed applicant resigned after admitted stealing and agreed to forfeit final pay - Month after applicant began employment respondents noticed large amount of stock and cash unaccounted for – Respondents installed security cameras – Respondents spoke to all staff about matter – Staff member informed respondents seen applicant take food without appearing to pay for it – Respondents monitored security footage and formed view applicant likely taking stock and stealing money - Respondents viewed security footage showing applicant passing an item to her husband whilst trying to conceal what was happening from co-worker - Later that day respondents counted out float in front of applicant – Respondents claimed applicant became flustered, red in the face, and left on duty break - Respondents decided to speak to applicant – Respondents told applicant had watched security footage and did applicant have anything to say – Parties disputed nature of conversation that followed – Respondents claimed applicant admitted to theft, apologised, and offered to pay money back – Applicant claimed respondents yelled at her and she did not apologise as had done nothing wrong – Claimed told to “f**k off” so left returning hour later to return key - Respondents’ evidence preferred - Respondents prepared document for applicant to sign forfeiting final pay and holiday pay in response to applicant’s admission – Applicant signed document – Two days later applicant contacted respondents asking when would receive final pay – Applicant reminded had signed document forfeiting it - Authority found while agreement to forfeit final pay could have been worded better expressly stated money was settlement to respondents – Found by signing it applicant consented to not receiving final pay – Authority did not accept applicant signed under duress or ignorance – Found applicant bound by agreement so not entitled to final pay - Found applicant accepted never told was dismissed or sacked or any other similar term – Found applicant not told to “f**k off” - Found applicant voluntarily handed in key and uniform – Found applicant left employment at own initiative after actions discovered – Found no dismissal - PENALTY – Applicant sought penalty for failure to provide written employment agreement (“EA”) – Respondents accepted no EA provided – Authority found EA was statutory requirement - $500 penalty appropriate - COSTS – Length of investigation meeting not specified – Authority found appropriate case for costs to lie where they fall – Team Member |
| Result | Applications dismissed (Unjustified dismissal)(Unjustified disadvantage)(Arrears of wages) ; Application granted (Penalty) ; Penalty ($500)(Payable to Crown) ; Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s63A(3);ERA s128;Wages Protection Act 1983 s4 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_14.pdf [pdf 29 KB] |