| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 420 |
| Hearing date | 8 Sep 2011 |
| Determination date | 26 September 2011 |
| Member | D King |
| Representation | S H Barter ; R Towner |
| Location | Auckland |
| Parties | Singh v Infinity Automotive Ltd t/a City Nissan Takapuna |
| Summary | INJUNCTION – Application for interim reinstatement – Applicant claimed unjustifiably dismissed by respondent for allegedly taking bribes – Applicant claimed respondent failed to investigate allegations adequately or genuinely consider explanation – Respondent provided work to panel beating companies - Allegations made by new owner (“C”) of panel beating company (“P”) year after C claimed events occurred – C claimed when purchased business told by P’s manager (“Y”) that P’s previous owner gave respondent money so respondent would provide P with work – Y took C to meet applicant to tell applicant C did not want to make payments to respondents in return for work – C claimed workload from respondent went down rapidly – C claimed Y never told C applicant’s name – Respondent’s general manager (“M”) overheard allegations that someone at respondent taking bribes from P – Applicant responsible for allocating work to panel beaters – M arranged meeting and applicant denied had taken bribes but claimed Y had given applicant two $50 gifts – M discussed meeting with human resources manager (“H”) and decided applicant’s explanation not credible – Applicant claimed after C bought P standard of work deteriorated and decided to send work to other panel beaters – M held second meeting and told applicant did not believe explanation and dismissal was possibility – H claimed applicant admitted to accepting bribes and did not tell anyone about gifts which suggested applicant aware should not receive payment from suppliers but applicant only told explanation not credible – Director of another panel beater company (“S”) claimed no incentives given to applicant or anyone else and S did significant work for respondent because of low pricing – Applicant had employment agreement in place before respondent took over company expressly permitting gifts up to $50 – Applicant had second employment agreement requiring applicant to apply with updated company policy – Applicant denied aware of updated company policy – Authority found serious matter involving allegations requiring high standard of proof – Respondent did not provide any evidence of attempts to contact Y for further evidence – Found respondent did not consider whether evidence inaccurate or that may have been other reasons for decline in C’s trade – Found applicant had arguable case would be reinstated if personal grievance successful – Found if alleged conduct took place respondent would have lost trust and confidence in applicant but not clear case of act amounting to dishonesty – Respondent claimed reinstatement would create perception respondent endorsed applicant’s behaviour – Found no evidence to support respondent’s assertions and seriousness of allegations meant damages inadequate remedy – Applicant had unsuccessfully tried to obtain fulltime employment and applicant’s position not filled – Found serious issues about evidence dismissal was based on - Found balance of convenience and overall of justice of case favoured applicant – Application for interim reinstatement granted but applicant to be reinstated to payroll only - Car Groomer |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s125(2);ERA s127;ERA s127(5);Evidence Act 2006 s18(1) |
| Cases Cited | Burtton v Talley’s Group Ltd [2010] NZEMPC 123;Manoharan v Waiariki Institute of Technology [2011] NZERA 352;R v Gwaze [2010] NZSC 52 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Auckland_420.pdf [pdf 22 KB] |