| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 75 |
| Hearing date | 26 May 2011 |
| Determination date | 31 May 2011 |
| Member | H Doyle |
| Representation | D Small ; T Durham |
| Location | Christchurch |
| Parties | Jordyn-Edser v Amatrac Enterprises Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed - Applicant dismissed for giving away 10 meals to patrons unhappy with service, giving directions to kitchen staff causing confusion with orders, taking chicken without payment, and taking cooked chips from kitchen without payment - Authority accepted fair and reasonable employer would have wanted to talk to applicant about events leading to 10 customers leaving without paying – However, found objectively assessed that fair and reasonable employer would not have concluded conduct could be described as giving away meals – Found applicant attempted to speak to manager about customers’ complaints – Found applicant judged customers trustworthy and recorded their contact details – Found fair and reasonable employer would have taken into account that was particularly busy night with many complaints about standard of meals – Found applicant did her best in difficult circumstances – Found viewed objectively conduct could not be considered serious misconduct - Authority found complaints from kitchen staff short on specifics and would have been performance issues rather than serious misconduct – Authority found theft of goods could be serious misconduct – Found as theft serious allegation had to be sufficient evidence to substantiate it - Authority not satisfied was full and fair investigation that would have enabled fair and reasonable employer to conclude applicant stole chicken – Authority not satisfied fair and reasonable employer would have concluded matter of taking chips would have amounted to serious misconduct - No evidence applicant given formal warnings during employment – Found were significant procedural deficiencies given seriousness of allegations of theft – Found applicant never given employment agreement or copy of house rules – Found respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies – No contributory conduct – Respondent to pay applicant arrears of wages, holiday pay and two weeks reimbursement of lost wages - Authority accepted dismissal caused applicant humiliation and loss of dignity, particularly in relation to theft allegation – Position was applicant’s first proper job and was excited about it and did her best to perform well – Found applicant forced to initially borrow money from parents then move back home with them - $4,000 compensation appropriate - COSTS – Successful personal grievance – Less than half a day investigation meeting – Authority found was straightforward matter - Respondent to pay applicant $1,500 contribution to costs – Waitress/Cashier |
| Result | Application granted ; Reimbursement of lost wages ($475) ; Arrears of wages ($106.250 ; Holiday pay ($151.98) ; Compensation for humiliation etc ($4,000) ; Holiday pay ($151.98) ; Costs in favour of applicant ($1,500) ; Disbursements in favour of applicant ($70)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Wages Protection Act 1983 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Christchurch_75.pdf [pdf 38 KB] |