| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 58 |
| Hearing date | 27 Apr 2011 |
| Determination date | 02 May 2011 |
| Member | P Cheyne |
| Representation | D Beck ; S Vaisevuraki |
| Location | Christchurch |
| Parties | Enosa v Black & White Fire Systems Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct - Respondent called applicant after applicant sent text would not be at work that day – Respondent claimed applicant intoxicated when parties spoke on phone, respondent not happy with applicant’s explanation and went to applicant’s house – Applicant claimed respondent told applicant was idiot and dumb and that respondent should come over and assault applicant – Authority noted throughout investigation respondent’s behaviour overbearing, patronising towards applicant and described applicant in manner similar to applicant’s evidence of phone call – Found applicant’s evidence of phone call credible – Respondent wrote letter to applicant informing applicant failure to turn up for work for fourth time was serious misconduct and employment terminated – Respondent claimed at investigation letter was written only to give applicant wake-up call and was prepared to draw up new employment agreement – Authority found letter unequivocally dismissed applicant – Applicant called respondent same afternoon to discuss letter - Respondent claimed told applicant to forget termination letter and take week off – Applicant gave almost no evidence of conversation – Authority found applicant admitted had been at night club and told respondent liked his job – Found respondent said would give applicant one more chance, to take a week off and then call respondent to draw up new contract – Noted much of exchange would have been respondent putting words into applicant’s mouth in overbearing manner – After conversation applicant found new employment – Authority found respondent intended to and did dismiss applicant when applicant read letter – Found later discussion about re-employment under new conditions did not undo dismissal – Found respondent failed to provide applicant access to relevant information or opportunity to comment before deciding to dismiss – Noted even if respondent thought applicant no genuinely sick, no reasonable employer would dismiss applicant without prior formal warnings – Evidence applicant cried during discussion with respondent - Authority noted applicant had no difficulty in finding new employment - Authority found applicant harassed, bullied and belittled by respondent - Unjustified dismissal - REMEDIES – No contributory conduct - Found compensation appropriate – ARREARS OF WAGES – Applicant sought lost wages - Respondent deducted several payments from applicant’s final pay for damage applicant caused to equipment and apprenticeship fees – Authority found applicant did not agree to reimburse respondent for costs or fees – Found deductions unlawful – Respondent to reimburse applicant for deductions from wages – ARREARS OF HOLIDAY PAY - Applicant claimed outstanding holiday pay - Applicant claimed initially employed by respondent on casual basis and paid in cash - Authority found in first three months of employment respondent paid applicant wages from personal, not company, money – Noted too late to join respondent in personal capacity to proceedings and no evidence arrears of holiday pay owing – However, applicant owed holiday pay for period employed by respondent - Initial three month period excluded from claim – No arrears of holiday pay - Fire Sprinkler Fitter Apprentice |
| Result | Applications granted (unjustified dismissal and arrears of wages and holiday pay) ; Compensation for humiliation etc ($6,000) ; Arrears of holiday pay ($1,966.40) ; Application dismissed (arrears of holiday pay) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s131;Wages Protection Act 1983 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Christchurch_58.pdf [pdf 26 KB] |