| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 229 |
| Hearing date | 1 Feb 2011 |
| Determination date | 30 May 2011 |
| Member | R Arthur |
| Representation | P Craggs ; G Harrison |
| Location | Auckland |
| Parties | Talitimu v Lal t/a Jag Lal Lawyers |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant dismissed because had not got respondent to check and sign paperwork for immigration application on behalf of client (“P”) in time for it to be sent by what respondent understood was required deadline - Applicant went to usual morning briefing with respondent – Respondent told applicant was ‘pissed off’ application for client not signed off and sent by courier to meet deadline - Argument developed between parties with applicant insisting respondent had instructed application not be sent until P paid fees and respondent claiming had reminded applicant three times application needed to be sent – Applicant did say would take some of blame as had not reminded respondent about application before left work on day needed to be sent to meet deadline – When respondent asked applicant if was blaming him applicant replied yes – Respondent annoyed by suggestion was to blame and told applicant worried P would sue if application not accepted by Immigration Service - Respondent told applicant was ‘fired’ – Applicant responded by saying ‘fine. I’m going’ – Applicant returned to work area, sorted out some files, packed up and left – Shortly after applicant left work respondent discovered Immigration Service had miscalculated deadline and still had another month to file application – Meeting next day between parties did not resolve issues and applicant informed was being dismissed for serious misconduct – Dismissal confirmed in letter – Authority found fair and reasonable employer would not, in all circumstances at time, have concluded applicant committed serious misconduct - Found were reasonable grounds for applicant to be unclear about respondent’s intentions and instructions whether to file P’ s application – Found respondent knew, or ought to have known, that P’s application not yet signed off and sent as respondent had to sign it off - Found in circumstances applicant not solely to blame for not meeting deadline – Found way in which respondent raised concerns with applicant and made dismissal decision were below standard of fair and reasonable employer - Found respondent should have given applicant opportunity to prepare considered response to allegation and opportunity to engage representative - Found respondent did not consider alternatives to dismissal - Found even if respondent had genuine concerns about P brining negligence action were dispelled within two hours of dismissal and before dismissal confirmed in writing - Dismissal unjustified – Remedies – Authority found, and applicant accepted, had not taken all care could have given responsibilities – Found applicant not responsible however for highhanded manner in which dismissed by respondent – 20 percent contributory conduct – Applicant found alternative employment seven weeks later – Reimbursement of seven weeks lost wages, subject to contribution, awarded - Authority accepted applicant’s evidence was humiliated and feelings injured by abrupt ending of employment – However, found applicant appeared to be resilient person who dealt with difficult experience quickly - $5,000 compensation, subject to contribution, appropriate - Client Services Officer |
| Result | Application granted – Reimbursement of lost wages (7 weeks reduced to 5ï¾½ weeks) ; Compensation for humiliation etc ($5,000 reduced to $4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA s174 |
| Cases Cited | Airline Stewards and Hostesses of NZ IUOW v Air NZ Ltd [1990] 3 NZILR 584 ; [1990] 3 NZLR 549; (1991) 4 NZELC 95,259 ; (1990) ERNZ Sel Cas 985;Angel & Anor v Fonterra Co-operative Group [2006] ERNZ 1080;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Auckland_229.pdf [pdf 27 KB] |