| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 387 |
| Hearing date | 27 Jul 2011 |
| Determination date | 08 September 2011 |
| Member | E Robinson |
| Representation | S Talakai (in person) ; B Smith |
| Location | Auckland |
| Parties | Talakai v Albany Food Warehouse Ltd t/a Albany Pak'n'Save |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondent – Respondent General Manager (“P”) claimed applicant took seven days leave without approval or explanation – Despite absenteeism, applicant became full time employee – Applicant signed individual employment agreement (“IEA”) which provided for disciplinary action in cases of poor time keeping or absence without good cause – Applicant confirmed at investigation meeting understood clauses – P claimed issues with applicant’s attendance continued – Line Manager (“J”) held formal meeting with applicant about absences – Authority satisfied discussion took place as noted by J – Applicant failed to attend work or telephone in advance – Applicant attended disciplinary meeting and explained father ill and no credit on mobile telephone – P did not accept explanation because applicant could have borrowed telephone or used landline – Applicant issued with formal warning – Applicant challenged warning but warning not rescinded following mediation – Parties agreed if applicant was absent from work had to telephone in one hour before start of shift – Applicant again failed to attend work or contact respondent to advise of absence – Applicant attended disciplinary meeting and claimed telephoned respondent and lady answered phone and said would pass on message – P reached conclusion applicant’s explanation not plausible – Applicant issued with final written warning – Applicant’s absenteeism continued – Another meeting held – Applicant telephoned 20 minutes before shift started to say could not come to work because someone had borrowed car – Supervisor advised explanation unsatisfactory – Applicant attended disciplinary meeting – Applicant failed to attend another shift but not raised as new issue – Applicant claimed in disciplinary meeting wanted chance to prove had medical condition that meant unsafe for applicant to attend work – P considered alleged medical condition but condition never raised with respondent before and applicant failed to provide details to support statement – P considered continued absenteeism was serious misconduct – Applicant dismissed – Authority found applicant fully aware of expectations in regards to notification of absence – Found open to P as fair and reasonable employer to not accept applicant’s explanation of medical condition – Found applicant had advance notice of each allegation and fully informed of consequences of non-compliance with IEA – Found applicant given opportunity to have representation at meetings but chose not to – Found applicant given opportunity to provide explanations – Found no evidence of bias or predetermination – Found applicant unable to produce evidence of disparity of treatment – Dismissal justified – UNJUSTIFIED DISADVANTAGE – Found P investigated applicant’s allegation of threatening behaviour by grocery manager and responded to applicant’s concerns in timely manner – Found no evidence applicant unjustifiably disadvantaged and dismissal predetermined – No unjustified disadvantage – Grocery Assistant |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767;NZ Food Processing Union v Unilever NZ Ltd [1990] NZILR 35;Samu v Air New Zealand Ltd [1995] ERNZ 636 |
| Number of Pages | 15 |
| PDF File Link: | 2011_NZERA_Auckland_387.pdf [pdf 51 KB] |