| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 188 |
| Hearing date | 3 May 2011 |
| Determination date | 09 May 2011 |
| Member | E Robinson |
| Representation | B Nabney ; M Sharp |
| Location | Tauranga |
| Parties | Allen v C3 Ltd |
| Summary | INJUNCTION – Application for interim reinstatement – Applicant claimed unjustifiably dismissed on basis of serious misconduct – Authority found reinstatement no longer primary remedy – Found applicant’s reinstatement remained remedy available to Authority – Applicant dismissed for failing to carry out reasonable instruction from manager (“P”) following heated exchange with P – Respondent claimed applicant’s behaviour of serious concern – Respondent claimed conduct in breach of code of conduct – Applicant refused to apologise to P – Applicant claimed conduct did not warrant dismissal – Respondent claimed refusing to apologise aggravated situation which led to respondent having no assurance applicant would not behave similarly in future – Found applicant had arguable case – Found applicant not subjected to any previous disciplinary action in 15 and a half years employment – Found incident occurred when applicant clearly frustrated and heated – Found arguable fair and reasonable employer would have taken applicant’s emotional state into consideration throughout whole process – Applicant claimed would have no difficulty continuing to work with P – Applicant claimed ready and willing to attend work – P claimed would have real difficulty continuing to work with applicant in light of alleged continued defiance – Respondent claimed reinstatement would have adverse impact on attitude of fellow employees towards management team – Found possibility of contributory behaviour may be found on part of applicant – Found more than theoretical risk applicant may establish personal grievance but fail to obtain reinstatement – Respondent claimed although applicant had no formal warnings, applicant spoken to on previous occasions about insubordination – Respondent claimed if applicant reinstated, would be difficult for P to retain respect of other employees – Applicant claimed no meaningful work caused social isolation and loss of income – Applicant claimed unlikely to find work of similar pay and conditions – Found applicant not in precarious financial situation – Found no suggestion respondent unable to meet any compensation award – Found balance of convenience favoured respondent – Found even if grievance established, may not be practicable to reinstate applicant – Found substantive hearing to take place within moderate time frame – Found overall justice favoured respondent – Application for interim reinstatement declined – Forklift Driver |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s103A;ERA s127(4);Employment Relations Amendment Act 2010 |
| Cases Cited | Burtton and Anor v Talleys Group Ltd [2010] NZEMPC 123;Kostic v Dodd unreported, Couch J, 11 July 2007, CC 14/07;Macadam v Port Nelson Limited (No 1) [1993] ERNZ 279 |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Auckland_188.pdf [pdf 28 KB] |