| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 498 |
| Hearing date | 15 Sep 2011 |
| Determination date | 18 November 2011 |
| Member | E Robinson |
| Representation | M Webster ; T Cleary |
| Location | Gisborne |
| Parties | Puhia v Ovation New Zealand Ltd (formerly Bernard Matthews New Zealand Ltd) |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent required to follow stringent food hygiene processes – Applicant claimed visited workplace on day was not working as had left behind items – Applicant claimed before left workplace put two bags of rubbish from applicant’s car in skip bin in respondent’s car park – Applicant claimed rubbish mainly empty cans and food wrappers from car - Respondent’s plant manager (“N”) claimed told by respondent’s supervisor (“R”) that R had seen applicant put rubbish into non food skip bin – Respondent claimed applicant’s actions jeopardised respondent’s export certification - Applicant claimed was told to attend meeting with N but not what meeting about or that entitled to bring support person – N claimed told union secretary (“K”) prior to meeting about allegations and asked K to attend meeting – Authority found more likely than not K attended meeting – N claimed applicant confirmed at meeting had put rubbish into non food skip bin – Applicant suspended – N called respondent’s retired human resources manager (“G”) – G told N applicant’s actions were serious misconduct as employee at workplace on non-work day should first report to respondent and employees were required to put personal rubbish in waste bins provided – Applicant attended second meeting – Applicant objected to K or union president representing applicant as believed corrupt and another union delegate (“W”) appointed – Applicant claimed did not have opportunity to speak to W before meeting and unaware could lose job – N claimed updated W and continued with meeting as applicant did not seek adjournment – Found applicant aware was disciplinary meeting and could have discussed matter with W – Applicant denied N gave applicant opportunity to explain actions – Found applicant’s failure to provide explanation for actions when requested by respondent inconsistent with applicant’s good faith duties - N claimed respondent’s employees would have known depositing personal rubbish into non food skip bin was wrong and applicant was long service employee – N claimed due to seriousness of offence and applicant’s attitude final warning inappropriate – Applicant dismissed – Found as applicant was current employee entitled to enter workplace and breach of perimeter fence alone did not amount to serious misconduct – Found respondent incorrectly concluded applicant entered workplace solely to dispose of rubbish – Found applicant did not park in designated area and did not report to respondent applicant created situation where safety might have been compromised – Found however in isolation applicant’s actions were not serious misconduct – Found more likely than not employees were aware should not deposit personal rubbish in non food skip bin – Found applicant misused respondent’s facility recklessly – Ministry of Agriculture and Forestry manager claimed applicant’s disposal of rubbish would not have jeopardised respondent’s ability to process product – Found N’s belief if Halal auditor had seen applicant’s actions respondent’s Halal certification would have been at risk reasonable – Found respondent’s decision applicant had committed serious misconduct substantively justified – Found respondent carried out fair and reasonable process – Found however fair and reasonable employer would have given more consideration to applicant’s length of service, clear disciplinary history and lack of signage around skip bin – Dismissal unjustified – REMEDIES – 75 percent contributory conduct - Found reinstatement not practicable or reasonable – Found applicant did not make vigorous effort to mitigate loss – 3 months reimbursement of lost wages appropriate - $1,500 compensation appropriate - Contract Slaughterman |
| Result | Application granted ; Contributory conduct (75%) ; Reimbursement of lost wages (Quantum to be determined) ; Interest (5%) ; Compensation for humiliation etc ($6,000 reduced to $1,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Animal Products Act 1999;ERA s4(1A);ERA s103A;ERA s124;ERA s125;ERA s128(2);ERA Second Schedule cl11;Judicature Act 1908 s87(3) |
| Cases Cited | Fuiava v Air New Zealand Ltd unreported, Travis J, 12 September 2006, AC 51/06;Garden v Lovich Floor Decor Ltd unreported, Shaw J, 6 November 2000, AC 86/00;Murphy And Routhan T/a Enzo’s Pizza v van Beek [1998] 2 ERNZ 607;BP Oil New Zealand Ltd v Northern Distribution Union [1992] 3 ERNZ 483;Pacific Blue Employment & Crewing Ltd v B [2010] NZEMPC 112;Safe Air Ltd v Walker (2009) 6 NZELR 761 |
| Number of Pages | 19 |
| PDF File Link: | 2011_NZERA_Auckland_498.pdf [pdf 93 KB] |