| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 363 |
| Hearing date | 5 Jul 2011 |
| Determination date | 18 August 2011 |
| Member | R Arthur |
| Representation | S Austin ; G Malcolm |
| Location | Whakatane |
| Parties | Drawbridge v Kiwi X Farmers Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant’s dog ran into shed pit after respondent director (“M”) yelled at it – M pulled dog out of shed pit after telling applicant no dogs allowed – Applicant grabbed M’s hand and M let dog go – M told applicant to “take your apron off and bugger off” – M claimed applicant had thrown pipe which struck M’s back – Applicant assumed dismissed – Applicant let out unmilked stock and turned off machines – Respondent claimed applicant misinterpreted M and abandoned job – Raroa Trust chairman (“K”) claimed told by M that applicant “just sacked” – M claimed K drunk and misheard what was said – Applicant’s neighbour (“W”) claimed told by M applicant dismissed and had final pay and form for applicant to sign – M claimed only said dismissal could eventuate – Authority preferred K’s and W’s evidence – Found applicant dismissed by M – Applicant’s partner (“P”) claimed told by M that had applicant’s final pay and needed to hand it to applicant personally – Applicant claimed M left phone message which said had final payslip ready – Found P’s and applicant’s evidence consistent with finding that applicant dismissed – Found applicant’s decision to pick up personal possessions at work reflected understanding that dismissed by M –Found M had legitimate concerns and could have reasonably raised matter later but acted in heat of the moment and used unequivocal words to dismiss applicant – Dismissal unjustified – REMEDIES – One third contributory conduct – Found reduction appropriate because applicant had dog in working area, M had previously cautioned applicant about dog, M entitled to remove dog from milking shed, applicant threw pipe at M and applicant let out unmilked stock and turned off machines – Found had applicant not been dismissed would have worked through to end of milking season but would not have been paid during winter stand down period – Found applicant made reasonable endeavours to mitigate loss by seeking work and gaining casual employment with neighbouring farmer – $1,009 reimbursement of wages appropriate – Found applicant embarrassed and humiliated by respondent’s actions and news of it which circulated quickly in local community – $9,000 compensation appropriate – ARREARS OF HOLIDAY PAY – Applicant claimed owed holiday pay and weekly wage was less than minimum wage – Parties agreed to have claim assessed by labour inspector – Labour inspector found no arrears due under minimum wage legislation but applicant owed $4,392 for alternative holidays and for work done on public holidays – Respondent accepted assessment but applicant did not – Applicant claimed supposed to be paid for 11.5 hours instead of 6.75 hours a day – Found parties had agreed applicant would be paid for 6.75 hours a day and those were the hours the applicant worked – Found applicant entitled to $4,392 arrears of holiday pay – Milker |
| Result | Applications granted ; Contributory conduct (33.3%) ; Compensation for humiliation etc ($9,000 reduced to $6,000) ; Reimbursement of lost wages ($1,009.50) ; Arrears of holiday pay ($4,392.32) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s174 |
| Cases Cited | PBO Ltd v Da Cruz [2005] ERNZ 808 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Auckland_363.pdf [pdf 32 KB] |