| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 332 |
| Hearing date | 24 Jan 2011 - 23 Jun 2011 (2 days) |
| Determination date | 26 July 2011 |
| Member | V Campbell |
| Representation | A Hope ; K Stretton |
| Location | Auckland |
| Parties | Kubler v Environmental Fertilisers Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent – Authority satisfied respondent’s delays and unavailability throughout investigation process attributable to failures of representative – Applicant told respondent Managing Director (“P”) of arrest for driving under influence of alcohol and methamphetamine addiction – Applicant claimed disadvantaged by respondent due to suspended without pay and without following procedure in employment agreement, not giving opportunity to be represented at meeting when employment in jeopardy and failing to communicate through applicant’s nominated representative (“W”) – Applicant met with P, Human Resources representative (“S”) and applicant’s foreman (“T”) in tearoom to discuss issues - Applicant agreed to undergo drug test – Applicant instructed would be placed on sick leave while awaiting results – Found meeting occurred after applicant sought medical intervention – Found applicant not advised of importance of meeting or offered opportunity to have representation – Found applicant had no entitlement to sick leave and therefore placed on leave without pay – Found pay records showed applicant only paid outstanding holiday pay while on leave – Found in absence of agreement from applicant instruction to take unpaid sick leave akin to suspension – Found employment agreement only allowed for suspension if employee failed drug test – Found suspension unjustified – UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant either resigned or abandoned employment – Applicant asked P and S to attend mediation to discuss suspension – S told applicant would not attend mediation and to contact respondent’s lawyer – P claimed hand delivered letter setting out arrangements of drug test to applicant – Applicant claimed never received letter as left at accommodation from which evicted – Applicant’s landlord found letter and handed it to T – T took no action to contact applicant – Applicant failed to undergo drug test – S wrote to applicant setting up disciplinary meeting – S’s letter informed applicant that failure to attend meeting would result in end of employment relationship – W contacted P and offered opportunity to attend mediation to resolve issues between respondent and applicant – P declined to attend mediation – Applicant did not attend disciplinary meeting – S claimed made up applicant’s final pay as obvious applicant not returning to work as served with Statement of Problem claiming unjustified dismissal – Found applicant unaware of letters – Found applicant dismissed from employment when S made up final pay – Found no full or fair enquiry into applicant’s conduct to justify summary dismissal – Found P and S made no effort to resolve matter through mediation – Found P and S took no steps to contact applicant before making up final pay despite knowing applicant represented by W and cell-phone number – Found Statement of Problem not served on respondent until after S had paid applicant final pay – Found dismissal unjustified – REMEDIES – No contributory conduct – Applicant claimed may have received home detention instead of imprisonment for excess breath alcohol charge if still employed by respondent – $5,000 compensation appropriate – Applicant accepted respondent’s offer of taking job back – Respondent withdrew offer as S concerned outstanding unpaid wages issue – Applicant not entitled to lost wages once imprisoned – $8,864 reimbursement of lost wages appropriate |
| Result | Applications granted ; Compensation for humiliation etc ($5,000) ; Reimbursement for lost wages ($8,864.64) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA Second Schedule cl12 |
| Cases Cited | Bilkey v Imagepac Partners unreported, Colgan J, 7 October 2000, AC 65/02;Mason v Health Waikato [1998] ERNZ 84;McCosh v National Bank unreported, Colgan J, 13 September 2004, AC 49/04;NZ Storeworkers IUW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Auckland_332.pdf [pdf 34 KB] |