| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 147 |
| Hearing date | 4 Nov 2010 - 5 Nov 2010 (2 days) |
| Determination date | 03 October 2011 |
| Member | H Doyle |
| Representation | R Davidson ; A Knowlsey |
| Location | Kaikoura |
| Parties | Manawatu v te Tai O Marokura Charitable Trust |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE - Abandonment - Applicant claimed was unjustifiably dismissed by respondent – Respondent claimed applicant absent from work without explanation in excess of three days and effectively abandoned employment – Respondent denied applicant had been employed by respondent for 17 years – Authority found applicant employed by respondent for 10 years – Applicant’s employment agreement did not have abandonment clause but stated applicant would comply with respondent’s rules and regulations – Applicant claimed had only brief overview of respondent’s policies including abandonment policy – Authority accepted evidence respondent brought abandonment policy to applicant’s attention and regularly reviewed all polices with employees - At parties’ marae meeting was decided A’s brother would be replaced by applicant’s brother as chairperson – Week later applicant’s niece had fight at school with respondent’s chief executive’s (“A”) niece – Applicant claimed matters caused tension between two families – Applicant’s niece advised not to attend school for safety reasons – Applicant stayed home for week to look after niece and did not return to work until following week – Applicant failed to contact anyone at respondent about absence – Applicant claimed had stayed away from work previously and nothing had happened – A accepted sometimes applicant did not come to work and that was inconsistent with respondent’s policy that employees report each day – A claimed however applicant’s earlier absences different as told by A or other staff where applicant was – Found applicant did not make any contact with respondent about absence – A spoke to applicant’s co-workers, called applicant on several different numbers and went to applicant’s house but no response – A made further attempts over week to contact applicant and four days after applicant’s first absence respondent confirmed by letter considered applicant had abandoned employment – A asked applicant if had received letter when applicant arrived at work following week – Applicant denied received letter and A gave applicant another copy – A confirmed letter not to do with family situation, applicant was not being fired but told applicant no longer required at respondent – Applicant wrote respondent letter two weeks later and claimed stayed away from workplace due to tension and intimidation tactics – A respondent disagreed applicant had any grounds for not being at work and refused meeting – Found applicant absent from work for period exceeding three days without prior consent or notification – Found A did not attempt to clarify with applicant whether good reason for absence and no evidence applicant intended to end employment – Authority not satisfied if applicant had opportunity to explain absence was inevitable A would have concluded had abandoned employment – Found could not rule out that family issues had some impact on applicant’s feelings of safety – Found respondent’s actions amounted to dismissal – Found unjustified disadvantage did not need to be separately considered as based on same facts - Found as respondent failed to establish if applicant’s absence was without good cause – Dismissal unjustified - REMEDIES – 25 percent contributory conduct - Applicant claimed could not find work in same area, had to move and felt disconnected from family – Found applicant did attempt to mitigate loss – Found applicant felt sense of humiliation and indignity in small community where had worked for ten years – Award of lost remuneration appropriate, parties to determine quantum - $12,000 compensation appropriate – Budget Advisor |
| Result | Applications granted ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($12,000 reduced to $9,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s103(1)(b);ERA s103A;ERA s113;ERA s124 |
| Cases Cited | Brown v Five Star Pork (NZ) Ltd unreported, R Arthur, 23 June 2008, AA 216/08;Lwin v A Honest International Co Ltd [2003] 1 ERNZ 387 |
| Number of Pages | 20 |
| PDF File Link: | 2011_NZERA_Christchurch_147.pdf [pdf 91 KB] |