| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 206 |
| Hearing date | 13 May 2011 |
| Determination date | 16 May 2011 |
| Member | E Robinson |
| Representation | D Feist ; no appearance |
| Location | Auckland |
| Parties | Karena v KCCS Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Poor performance – No appearance for respondent – Applicant commenced working with respondent following introduction by her aunt (“K”) who worked for respondent – No written employment agreement provided – Applicant cleaned intermediate school under supervision of K– While attempting to clean behind dishwasher in staff room applicant put her hand on top of donation box – K told applicant should not have touched donation box – Applicant replied donation box should not be in unlocked staff room – K contacted applicant’s mother (“M”) and informed her applicant’s employment terminated as surveillance camera footage showed applicant with hand on donation box – K gave M letter to give to applicant stating applicant dismissed for poor standard of work and because lollies had been stolen from school - M attempted to discuss matter with respondent in capacity as applicant’s representative – M claimed respondent hung up on her without discussing matter fully - Authority found dismissal procedurally unjustified - Found applicant not provided with specific allegations and given no real opportunity to provide explanation – Found dismissal substantively unjustified – Found no evidence money had been removed from donation box – Found no evidence school had complained of applicant’s standard of work or that lollies being stolen – Applicant had not received any formal warnings about standard of work - Found respondent failed to comply with basic tenets of natural justice or with statutory good faith obligations - Respondent’s actions not those of fair and reasonable employer – Dismissal unjustified – Remedies – No contributory conduct – Applicant’s attempts to find alternative employment unsuccessful – Applicant began pre-teaching training course accessed via WINZ - 12 weeks reimbursement of lost wages awarded – Interest awarded – Found applicant 17 years old at time of dismissal and was deprived of opportunity to clear her name or refute allegation standard of work poor – Found applicant became stressed and depressed – $5,000 compensation appropriate - COSTS – Successful personal grievance – Less than half day investigation meeting – Respondent to pay applicant $1,500 contribution to costs - Cleaner |
| Result | Application granted ; Reimbursement of lost wages ($2,625) ; Interest ($196.87) ; Compensation for humiliation etc ($5,000) ; Costs in favour of applicant ($1,500) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA Second Schedule cl11;ERA Second Schedule cl15 |
| Cases Cited | NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 ; (1990) 3 NZELC 97,567 ; (1990) ERNZ Sel Cas 582;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808 |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Auckland_206.pdf [pdf 25 KB] |