| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 128 |
| Hearing date | 20 Oct 2010 |
| Determination date | 31 March 2011 |
| Member | K J Anderson |
| Representation | L Hemi ; D Sharp |
| Location | Gisborne |
| Parties | Skudder v Arai Matawai Inc |
| Summary | UNJUSTIFIED DISMISSAL – Misconduct – Considerable autonomy removed from applicant’s role when Mr Pardoe (“P”) promoted to Operations Manager – P concerned that applicant’s style of management would not fit within new structure – Applicant issued with first written warning following meeting about several issues relating to applicant’s alleged discomfort with carrying out reasonable instructions – Applicant claimed warning not discussed – Authority found no reason given for not accepting applicant’s explanation of matters leading to warning – Meeting held to draft action plan – Applicant issued with final written warning following disciplinary meeting – Applicant claimed did not know expectations of role because not provided with employment agreement – Applicant invited to disciplinary meeting where three issues discussed – Respondent claimed applicant not capable of performing to level expected – Respondent claimed applicant had opportunities to discuss operational requirements and duties associated with role – Respondent accepted applicant experienced but failed to communicate effectively – Respondent claimed applicant included in decision making process and applicant treated fairly – Applicant required to take annual leave when suffering from stress-related illness pending mediation – Applicant dismissed – In relation to first warning, found applicant gave reasonable explanation of perception of matters – Found no evidence of any reason given by respondent for rejection of explanations before warning issued – Found first warning unjustified – Found not appropriate to issue applicant with final written warning – Found respondent not entitled to rely upon final warning as contributing factor in decision to dismiss – Found decision to dismiss not action of fair and reasonable employer in all circumstances – Found reasons for dismissal unclear apart from reliance on final warning – Found no opportunity given to applicant to respond before decision to dismiss made – Found no real substance behind dismissal – Dismissal unjustified – REMEDIES – 20 percent contributory conduct – Found no evidence applicant attempted to obtain alternative employment – $6,346 reimbursement of lost wages appropriate – Found substantial award of compensation appropriate given hurtful affects of dismissal on applicant – $14,400 compensation appropriate – ARREARS OF HOLIDAY PAY – Applicant claimed owed one month’s holiday pay – Applicant forced to use annual leave while suffering from stress-related illness pending mediation – Found given applicant was long serving employee, fair and reasonable employer would have suspended applicant on full pay – Found applicant never consented to use accrued holiday pay – Holiday pay due and owing – Station Manager |
| Result | Application granted ; Reimbursement of lost wages ($6,346.15) ; Compensation for humiliation etc ($18,000 reduced to $14,400) ; Arrears of holiday pay ($4,583.33) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand v Hudson [2006] ERNZ 415;Air New Zealand Ltd v V [2009] ERNZ 185;Irvines Freightlines Ltd v Cross [1993] ERNZ 424;Northern Distribution Union v Armourguard Security Ltd [1989] 3 NZILR 262;Northern Distribution Union v BP Oil Ltd [1992] 3 ERNZ 483 |
| Number of Pages | 32 |
| PDF File Link: | 2011_NZERA_Auckland_128.pdf [pdf 117 KB] |