| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 399 |
| Hearing date | 21 Jul 2011 |
| Determination date | 15 September 2011 |
| Member | R Larmer |
| Representation | D Gelb ; D Creamer |
| Location | Auckland |
| Parties | Watson v The Green Energy Corporation Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed summarily dismissed after respondent discovered competitor had offered applicant job – Applicant claimed respondent ended employment without good reason and no process followed – Respondent claimed parties did not have normal employment relationship as respondent had incurred costs employing applicant and had only done so as act of kindness – Respondent claimed offered to help applicant in return for applicant applying expertise honestly and loyally – Both parties accepted relationship was employment relationship - Respondent claimed being current licensed gasfitter was condition of applicant’s employment but applicant had no intention of holding current licence – Respondent gave evidence at investigation meeting that dismissed applicant immediately as applicant had filled out timesheets inaccurately, failed to send away licence registration form and obtained job with competitor – When applicant employed both parties believed applicant needed to apply for gasfitter licence from Plumbers, Gasfitters and Drainlayers Board (“Board”) and applicant required supervision by respondent’s contractor (“X”) - Applicant denied had been given cheque for licensing fee and claimed had not sent application as could not afford fee – Parties later discovered applicant already licensed, did not need to apply and current supervisor was former employer (“P”) – P failed to advise Board no longer supervising applicant, X failed to advise Board had replaced P as applicant’s supervisor therefore applicant unable to undertake work as licensed gasfitter and P remained responsible for applicant’s work – Authority found supervisor responsible for informing Board of changes not applicant – Respondent claimed applicant claimed payment for hours not actually worked – Respondent did not treat timesheet incidents as disciplinary concerns but reminded applicant accuracy important – Applicant denied had been dishonest but accepted one timesheet misleading as had actually left work for day - Respondent claimed concerns about timesheet, applicant’s failure to send licence application and discovery applicant had new job meant applicant could not be trusted – Respondent claimed decided to dismiss applicant immediately as did not want to expose company to someone with applicant’s “obvious lack of character” – Applicant agreed had interview with respondent’s competitor but had not made decision yet – Respondent arrived unannounced at site where applicant working, told applicant had heard applicant accepted competitor’s job offer and dismissed applicant immediately – When applicant returned company vehicle next day respondent raised concerns about applicant including incorrect timesheets, bringing company into disrepute and damage to company property – Parties agreed respondent’s concerns raised after applicant’s employment terminated and no process followed before dismissal - Found applicant’s dismissal procedurally and substantively unjustified and, even if applicant had accepted new employment, that did not justify summary dismissal – Respondent’s actions not those of fair and reasonable employer in all circumstances – REMEDIES – 20 percent contributory conduct - Found applicant took appropriate steps to mitigate loss - $5,000 lost remuneration appropriate – Interest payable - $2,800 compensation appropriate - COUNTERCLAIM – RECOVERY OF MONIES - Respondent sought reimbursement of applicant’s personal spending on respondent’s fuel card and two speeding tickets fines incurred whilst applicant driving company vehicle – Applicant admitted owed respondent for personal spending but disputed had to reimburse respondent for map as purchased to find location of job – Found applicant should reimburse respondent for purchase of map as unauthorised expense – Found personal purchases on fuel card amounted to $64 – Applicant accepted had to reimburse respondent for $80 and $30 speeding tickets – Applicant to pay respondent $174 - Licensed Gasfitter |
| Result | Application granted ; Contributory conduct (20%) ; Reimbursement of lost wages ($5,000) ; Interest (5%) ; Compensation for humiliation etc ($3,500 reduced to 2,800) ; Counterclaim granted ; Recovery of monies ($174.29) ; Costs reserved ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s65;ERA s65(2)(a);ERA s65(3);ERA s128(2);Judicature (Prescribed Rate of Interest) Order 2011 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Auckland_399.pdf [pdf 31 KB] |