| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 48 |
| Hearing date | 27 Aug 2010 |
| Determination date | 08 February 2011 |
| Member | K J Anderson |
| Representation | S Kopu ; R Pool |
| Location | Auckland |
| Parties | Ghilardi v Osteria Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant employed as head chef at restaurant operated by respondent - Applicant also shareholder and director of respondent - Applicant asked junior co-worker (“B”) to receive courier package for him – B questioned by Police about package – Package subsequently found to contain cocaine - Applicant charged under Misuse of Drugs Act 1975 and released on bail - B claimed resigned as Police advised him not to work with applicant - When respondent’s director (“C”) found out why B resigned spoke to applicant - Applicant then suspended without pay while respondent investigated matter - Applicant claimed if investigation took place not informed of outcome – Parties met week after applicant suspended – Applicant claimed dismissed when C told him other staff would not work with him and that for C “this was over” – Respondent claimed applicant resigned when said “I don’t want to fight with you. I’m leaving” - Applicant’s employment agreement provided for suspension process in event respondent wished to investigate alleged misconduct – Found respondent did not follow suspension process - Found therefore suspension unfair and unjustified – Found suspension caused applicant unjustified disadvantage – Authority found more probable than not applicant dismissed rather than resigned - Found on evidence dismissal substantially justified – However, found respondent did not provide applicant with details of investigation, allegations applicant required to answer and when, or that dismissal was possible outcome – Found dismissal procedurally unjustified - Dismissal unjustified - Remedies - Found applicant did not contribute to respondent’s failure to follow suspension process – Found applicant entitled to lost wages for period of suspension - Authority accepted sudden departure from restaurant without pay affected applicant - $3,000 compensation appropriate - Found applicant contributed towards situation giving rise to unjustified dismissal - Found applicant’s actions had potential to bring respondent into disrepute – Found applicant had involved junior co-worker in illegal action - Found applicant abused trust and confidence placed in him as Head Chef by concealing drug charges from C but informing other employees, instructing other employees to misled C as to reason for B’s resignation, and creating situation where other employees would not work with him – Found given contribution and as dismissal procedurally justified no remedies to be awarded – PENALTY – Applicant sought penalty for breach of employment agreement – Found penalty not warranted - Head Chef |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal) ; Application dismissed (penalty) ; Arrears of wages ($1,000) ; Compensation for humiliation etc ($3,000)(unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103A;ERA s124;ERA s134;ERA s135;Misuse of Drugs Act 1975;Misuse of Drugs Act 1975 s6 |
| Cases Cited | Nelson Air Ltd v New Zealand Airline Pilots Association [1994] 2 ERNZ 665 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Auckland_48.pdf [pdf 43 KB] |