| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 225 |
| Hearing date | 21 Mar 2011 |
| Determination date | 26 May 2011 |
| Member | V Campbell |
| Representation | K Janes (in person) ; J Phillips |
| Location | Tauranga |
| Parties | Janes v Waihi Beach Service Station Ltd t/a Gas Waihi Beach |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance – Respondent advised by customer daughter’s vehicle had been filled with diesel, not petrol – Respondent checked surveillance tapes and applicant identified as person responsible – Identification confirmed by customer’s daughter – Applicant advised of complaint, shown footage and told although serious matter no action would be taken – Applicant incorrectly filled second customer’s vehicle with diesel, not petrol – Applicant told respondent customer had handed him diesel pump and thought was doing right thing – Surveillance showed applicant, not customer, picked up pump and vehicle parked in front of petrol pump – Applicant towed vehicle to workshop and attempted to drain fuel – Applicant arrived before start of shift next day to fix vehicle – Respondent phoned service station and told employee working not to let applicant do work on vehicle – Employee advised respondent applicant already trying to restart vehicle – Applicant claimed told by respondent could no longer afford to keep applicant, sorry things did not work out and applicant should leave – Respondent claimed told applicant could not afford to keep on but did not amount to dismissal – Respondent found applicant’s uniform and keys next morning – Applicant’s partner (“X”) told respondent next day did not think instant dismissal fair – Respondent claimed had conversation with X but denied X said applicant believed had been dismissed - Authority found X told respondent unfair applicant had been instantly dismissed – Respondent claimed still expected applicant to appear next shift but failed to contact applicant when did not turn up – Applicant attempted suicide later that morning - Authority found respondent aware applicant believed had been dismissed – Applicant contacted respondent and asked to meet for discussion – Respondent refused – Applicant became angry and threatened respondent – Respondent claimed threat destroyed employment relationship and applicant still employee until made phone call – Authority found respondent had opportunity to contact applicant if believed applicant not dismissed – Found on balance of probabilities applicant dismissed and respondent’s failure to contact or meet with applicant not actions of fair and reasonable employer – REMEDIES – Contributory conduct – Found applicant careless in way undertook duties and threat to respondent aggravated situation - Authority noted applicant provided little evidence to support compensation claim – Noted suicide attempt after dismissal - $1,500 compensation appropriate - COUNTER CLAIM - Respondent claimed applicant failed to perform duties with reasonable skill and care – Claimed applicant’s attempt to restart customer’s vehicle caused considerable damage and sought $656 costs – Authority found evidence did not support damages claim – Noted respondent present while applicant attempted to repair vehicle – Found if respondent concerned, could have stopped applicant from working on vehicle – No breach of duty - Pump Attendant |
| Result | Application granted ; Compensation for humiliation etc ($1,500) ; Counterclaim dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Auckland_225.pdf [pdf 26 KB] |