| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 241 |
| Hearing date | 5 May 2011 |
| Determination date | 08 June 2011 |
| Member | R Larmer |
| Representation | M Nutsford ; W Kerr |
| Location | Auckland |
| Parties | Zielinksi v Autoglas Stieger Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant dismissed for failure to follow lawful and reasonable instruction and poor performance - Applicant informed of urgent job involving bulletproof glass in armoured vehicle for one of respondent’s major clients – Applicant experienced glazier but not experienced with bulletproof glass or armoured vehicles – Applicant concerned about lack of experience so told respondent’s managing director (“S”) did not feel confident doing job himself and with only new employee (“M”) assisting – M had no experience with bulletproof glass – S annoyed with applicant’s reluctance as believed job within applicant’s capabilities – S unwell so could not do job and as receptionist away had to stay in office to cover calls – Discussion between parties became increasingly heated about manner in which applicant should perform job – S ascertained M prepared to do job and so told applicant to go home for rest of day as was only job available – Once applicant told to go home said would perform job – By that stage S had lost trust and confidence in applicant’s ability to do job to required standard and so told applicant to go home and would be contacted later with instructions for following day – Applicant sent disciplinary letter – Disciplinary meeting held – S took exception to notes applicant had at meeting as believed prepared by someone else and applicant trying to set S up for personal grievance – Applicant’s evidence about notes and disciplinary meeting preferred - Authority found job did fall within applicant’s duties and was work S could have lawfully instructed applicant to perform – However, evidence did not satisfy Authority S ever actually instructed applicant to do job – Found S could have specifically instructed applicant to perform job, and if had applicant would have had to obey instruction – Found, and S admitted, applicant never actually given instruction – Found applicant could not have breached instruction if no instruction issued – Found even if instruction had been issued evidence did not establish applicant expressly refused to do job – Found applicant said not confident to do job by himself – Found therefore applicant could not have refused to obey instruction had one been given – Found applicant did not engage in conduct fair and reasonable employer would have concluded amounted to serious misconduct – Found dismissal for failing to follow lawful instruction substantively unjustified – S told Authority 80 percent dismissed applicant for failure to obey instruction and 20 percent for previous poor performance - Found disciplinary letter did not identify any performance concerns – Found performance concerns not raised in disciplinary meeting so applicant given no opportunity to respond – Found fair and reasonable employer would have properly raised all concerns with employee and provided opportunity to respond before making decision to summarily dismiss - Found respondent’s actions not those of fair and reasonable employer - Dismissal unjustified - Remedies – Authority found applicant’s continued unwillingness to accept assurances about technical aspects and assistance that would be provided contributed to situation giving rise to grievance - 20 percent contributory conduct - Authority satisfied applicant took steps to mitigate loss – Applicant found alternative employment five weeks after dismissal, although at lower hourly rate – Respondent to pay applicant $6,635 lost remuneration – Applicant struggled financially and suffered from stress and sleeplessness following dismissal - $6,000 compensation reduced to $4,800 for contribution appropriate - Windscreen Glazier |
| Result | Application granted ; Reimbursement of lost wages ($6,635) ; Compensation for humiliation etc ($6,000 to $4,800) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A;ERA s124;ERA s128(2) |
| Cases Cited | Board of Trustees of Marlborough Girls’ College v Sutherland [1999] 2 ERNZ 611;Brownless v Tasman Pulp & Paper Co Ltd [1992] 3 ERNZ 1019;Laws v London Chronicle (Indicator Newspaper) Ltd [1959] 1 WLR 698;NZ ETC Shipwrights ETC IOUW v Honda NZ Ltd [1989] 3 NZILR 791;NZ Printing ETC IUOW v Clark & Matheson Ltd [1984] ACJ 283;NZ (with exceptions) Food Processing etc IOUW v. Unilever NZ Ltd [1990] 1 NZILR 35 ; (1990) ERNZ Sel Cas 582;Roydvale Transport Ltd v Hobson unreported, Travis J, 19 Oct 1995, CEC 36/95;Samuels v Transportation Auckland Corporation Ltd [1995] 1 ERNZ 462;Sky Network Television Ltd v Duncan [1998] 1 ERNZ 354;Sky Network Television Ltd v Duncan [1998] 3 ERNZ 917;Wellington etc Clerical etc Workers IOUW v College Group Ltd [1984] ACJ 315 |
| Number of Pages | 13 |
| PDF File Link: | 2011_NZERA_Auckland_241.pdf [pdf 37 KB] |