| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 419 |
| Hearing date | 28 Jul 2011 |
| Determination date | 26 September 2011 |
| Member | Y S Oldfield |
| Representation | R Upton ; D Erickson |
| Location | Auckland |
| Parties | Aitken v Carter Holt Harvey Ltd t/a Carters |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant lost control of company vehicle while driving home from bar and crashed vehicle into tree – Applicant left scene on foot without waiting for police to arrive – Applicant visited police station next day to provide account of accident – Applicant telephoned manager (“Q”) evening of accident – Q visited accident site following day – Applicant claimed did not appreciate seriousness of situation after Q said applicant’s interests would be looked after – Authority found applicant could not hold respondent responsible for fact Q misapprehended seriousness of situation – Applicant invited to attend disciplinary meeting where allegation set out – Applicant claimed allegation not set out in same terms as reason later given for dismissal and not charged with reckless driving – Respondent claimed no difference between allegations and conduct amounted to reckless driving – Found allegation expressed in dismissal letter simply paraphrased allegation set out at disciplinary meeting – Found no unfairness – Applicant claimed in coming to decision to dismiss respondent took into consideration matters not put to applicant for comment – Respondent claimed information provided to or at least known to applicant – Found not necessary to put employee on notice that employer would take into consideration answers given to questions in disciplinary process – Found respondent needed to put inference that applicant left scene to avoid police to applicant – Respondent claimed element not decisive of dismissal – Found not significant procedural flaw – Applicant claimed respondent drew unreasonable conclusions from admissions – Found open to respondent to construe statements as it did – Found entirely reasonable for respondent to think something similar could happen again – Found no disparity of treatment between applicant and previous case – Found applicant’s actions would be seen by fair and reasonable employer as constituting serious misconduct – Found no material shortcomings in disciplinary process – Found if were shortcomings, applicant’s contribution 100 percent – Dismissal justified – COUNTERCLAIM – BREACH OF CONTRACT – Respondent claimed applicant breached employment agreement by failing to make payments required – Found applicant bound by obligation to repair damage at own cost arising out of reckless or deliberate misuse of vehicle – Found applicant liable for damages – Found respondent self-insured – Found respondent’s entitlement to retain employer contributions from applicant arose out of same facts as claim for damages – Found loss to respondent was full costs of repair minus employer contribution – $21,593 damages payable – Found futile to award interest on damages awarded – Express Representative |
| Result | Application dismissed (unjustified dismissal) ; Application granted (counterclaim)(breach of contract) ; Damages for breach of contract ($21,593.12) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA Second Schedule cl11;Judicature Act 1908 s87(3) |
| Cases Cited | ANZ National Bank Ltd v Hussain unreported, R Arthur, 28 Jan 2010, AA 34/10;Lister v Romford Ice & Cold Storage Ltd [1957] 1 All ER 125 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Auckland_419.pdf [pdf 37 KB] |