| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 81 |
| Hearing date | 21 Apr 2011 |
| Determination date | 10 June 2011 |
| Member | P Cheyne |
| Representation | P Cranney ; P Zwart |
| Location | Christchurch |
| Parties | Thomas v AsureQuality Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Parties requested determination be limited to consideration of whether applicant unjustifiably dismissed and leave remedies, if applicable, for further determination - Applicant alleged to have been negligent in viscera inspection, to have left chain without permission, and plant without advising supervisor – Respondent claimed applicant’s actions likely to bring respondent into disrepute – Incidents all occurred on one day – Following exchanges and meeting between parties and union representatives respondent concluded allegations proven and individually and in combination amounted to serious misconduct warranting summary dismissal – Applicant claimed not negligent nor was conduct likely to bring respondent into disrepute – Applicant denied abandoning employment - Respondent claimed new test of justification introduced by Employment Relations Amendment Act 2010 applied – Claimed that statutes applied to circumstances as arose and justification for dismissal assessed by Authority rather than employer therefore new test to be used – Authority found Authority not to substitute its view for that of employer – Found current and former test of justification referred to circumstances at time of dismissal - Found Interpretation Act 1999 provided that enactment did not have retrospective effect – Found applying new test would give amendment retrospective effect without that being expressly or impliedly provided for in statute - Authority found fair and reasonable employer would not have regarded applicant’s error as sufficiently grave as to amount to serious misconduct – Found that view supported by respondent’s Code of Ethics – Found based on evidence fair and reasonable employer would not have made distinction between applicant leaving chain without permission and leaving plant without permission – Found fair and reasonable employer would not have reached conclusion that each aspect of applicant’s conduct separately amounted to serious misconduct warranting dismissal - Dismissal unjustified – Authority to contact parties to arrange further investigation - Meat Inspector |
| Result | Application granted ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s102;ERA s103(1)(a);ERA s103A;Employment Relations Amendment Act (No 2) 2004;Interpretation Act 1999 s7;Interpretation Act 1999 s17(1)(b);Interpretation Act 1999 s18(1);Interpretation Act 1999 s18(2) |
| Cases Cited | Air New Zealand v Hudson [2006] ERNZ 415;Ballylaw Holdings Ltd v Ward unreported, Shaw J, 13 Nov 2001, WC 41/05;Click Clack International Ltd v James [1994] 1 ERNZ 15 ; (1994) 4 NZELC 98,259;Health Waikato Ltd v Tebbutt [2003] 2 ERNZ 398;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448; [2001] 3 NZLR 29 |
| Number of Pages | 13 |
| PDF File Link: | 2011_NZERA_Christchurch_81.pdf [pdf 43 KB] |