| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 370 |
| Hearing date | 1 Apr 2011 - 5 Jul 2011 (2 days) |
| Determination date | 24 August 2011 |
| Member | E Robinson |
| Representation | A Hope ; N Bolstad |
| Location | Hamilton |
| Parties | Smith v Caprima Cuisine Ltd t/a Grillers Restaurant |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably disadvantaged as result of verbal warning, written warning, unilateral variation in employment agreement and failure to be protected from bullying – Applicant claimed unjustifiably dismissed by respondent – Respondent denied applicant disadvantaged and claimed applicant abandoned employment – Owner and director of respondent (“P”) promoted team leader (“E”) to manager – Applicant claimed relationship with E deteriorated due to their pregnancies and E swore and berated applicant in front of others – P met with E and applicant and emphasised their respective responsibilities and need for them to liaise with each other – P claimed told by applicant relationship with E improved after meeting and so took no further action – E accused applicant of stealing meal in front of other staff and said would give applicant warning – Applicant explained to E that took meal in accordance with work policy – P met with applicant and issued applicant with verbal warning for taking food without permission – P found no floor mats placed in kitchen – Applicant claimed insufficient time to deal with matter – P met with applicant and issued written warning for poor performance – Applicant claimed stripped of team leader status in front of other staff by P – P gave applicant written notice stating intention to take disciplinary action for various poor performance actions – Applicant did not attend work as too upset – Applicant asked kitchen hand (“M”) to advise respondent that applicant would not be at work – P told by E that applicant had not turned up for work – M told P applicant made call to P’s cell phone – P left message with applicant’s representative asking if applicant intended to return to work but received no response – Applicant attended meeting with P and raised personal grievances – Applicant attended further meeting but left once respondent confirmed view that applicant had terminated employment relationship through abandonment – Authority found applicant’s actions in taking meal home breached House Rules – Found procedural flaw in verbal warning as not signed by applicant or recorded on applicant’s file and applicant did not receive copy as required by employment agreement – Found applicant unjustifiably disadvantaged by verbal warning – Found P had substantive justification for deciding applicant’s failure to put down floor mats was below required standard – Found procedural flaw in written warning as prepared letter in advance of meeting applicant – Found applicant unjustifiably disadvantaged by written warning – Found E’s promotion did not disadvantage applicant or act as unilateral variation of applicant’s employment agreement – Found E’s behaviour did not constitute bullying – Found P not aware that more intervention required after meeting with applicant and E – Found applicant did not have good cause to be absent from work – Found by not making enquiry of reason for applicant’s absence and by attending meetings arranged to discuss allegations of disciplinary nature between parties ongoing employment relationship affirmed – Dismissal unjustified – REMEDIES – 30 per cent contributory conduct for unjustified disadvantage verbal warning – Found reduction appropriate as applicant aware of House Rules and in senior position – 50 per cent contributory conduct for unjustified disadvantage written warning – Found reduction appropriate as applicant aware of risks of not putting floor mats down and in senior position – 50 per cent contributory conduct for unjustified dismissal – Found reduction appropriate as applicant aware of importance of giving timely notification of absence and applicant’s lack of communication contributed to respondent’s belief that applicant abandoned employment – $300 compensation appropriate for unjustified disadvantage verbal warning – $500 compensation appropriate for unjustified disadvantage written warning – $3,500 compensation appropriate for unjustified dismissal – Found applicant obtained employment after dismissal – Found reimbursement of lost wages awards appropriate and deductions appropriate – Senior Chef |
| Result | Application granted (unjustified disadvantage – verbal warning)(unjustified disadvantage – written warning)(unjustified dismissal) ; Contributory conduct (30%)(unjustified disadvantage – verbal warning) ; Contributory conduct (50%)(unjustified disadvantage – written warning) ; Contributory conduct (50%)(unjustified dismissal) ; Compensation for humiliation etc ($300 reduced to $210)(unjustified disadvantage – verbal warning) ; Compensation for humiliation etc ($500 reduced to $250)(unjustified disadvantage – written warning) ; Compensation for humiliation etc ($3,500 reduced to $1,750)(unjustified dismissal) ; Reimbursement of lost wages (quantum to be determined) ($130.66)(holiday pay) ($32)(attendance at two disciplinary meetings) ; Application dismissed (unjustified disadvantage – unilateral variation)(unjustified disadvantage – bullying) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A;ERA s124 |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;Attorney General v Gilbert [2002] ERNZ 31;E N Ramsbottom Ltd v Chambers [2000] 2 ERNZ 97;Fuiava v Air New Zealand Ltd [2006] ERNZ 806;Lwin v A Honest International Co Ltd [2003] ERNZ 387 |
| Number of Pages | 25 |
| PDF File Link: | 2011_NZERA_Auckland_370.pdf [pdf 78 KB] |