| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 506 |
| Hearing date | 3 Oct 2011 - 4 Oct 2011 (2 days) |
| Determination date | 30 November 2011 |
| Member | E Robinson |
| Representation | B Nabney ; M Sharp |
| Location | Tauranga |
| Parties | Allen v C3 Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Supervisor (“C”) claimed sent text message to applicant asking to work public holiday and applicant confirmed was available and prepared to work – Work colleague (“T”) sent text message to applicant to say not to come into work because progress on work faster than expected – Applicant claimed did not check message until arrived at work and left soon afterwards – Applicant applied for half hour’s pay in respect of working on public holiday but lieu day did not show up on payslip – C claimed applicant’s responsibility to check messages before arrived at work and therefore not entitled to lieu day for working public holiday – Manager (“P”) claimed applicant not entitled to lieu day under collective employment agreement – P claimed applicant swore at P and made obscene gesture before leaving meeting about payment – Applicant refused to return to meeting – Applicant invited to attend disciplinary meeting – Applicant claimed should have been contacted by C – Applicant claimed T could have contacted applicant on landline – P concerned applicant showed no remorse for actions – Second meeting held – Parties discussed practice of sending and receiving text messages about work shifts – Applicant informed actions constituted serious misconduct – Applicant refused to apologise until respondent apologised for not awarding lieu day – Applicant dismissed – P claimed request for applicant to return to meeting reasonable and believed meeting held in respondent’s time – Applicant claimed meeting held in smoko time – Authority found meeting held in respondent’s time – Found use of abusive and offensive language and gestures example of serious misconduct in code of conduct – Found use of strong language not uncommon in workplace – Found use of similar language and gestures to fellow employee during normal course of working day would not have incurred disciplinary penalty – Found language and gestures made at manager which made conduct more serious – Found fair and reasonable employer would have taken into account applicant upset at time of incident – Found applicant given chance to cool down before disciplinary meeting held – Found applicant did not show remorse for actions – Found applicant’s behaviour in disciplinary meeting further impaired trust and confidence in applicant – Found applicant advised before meeting that employment could be affected – Found fair and reasonable employer would have viewed actions as serious misconduct as directed at P in front of subordinate employees and applicant had chance to cool down – Found respondent had no alternative but to dismiss – Found applicant long serving employee who was aware of respondent’s standards – Found applicant in position to balance advice of union official against information provided to reach own conclusion – Found more appropriate for letters to come from someone other than P – Found appropriate response to employees’ concerns about applicant seeking reinstatement for P to ask for concerns to be put in writing – Found no bias against applicant – Found no pre-determination against applicant – Dismissal justified – Forklift Driver |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Fuiava v Air New Zealand Limited [2006] ERNZ 806;Canterbury Boilermakers etc IUOW v Canterbury Steel Fabricators Ltd [1985] ACJ 422;Kostic v Dodd unreported, Couch J, 11 Jul 2007, CC 14/07;Macadam v Port Nelson Limited (No 1) [1993] ERNZ 279;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;NZ Baking Trades Employees IUOW v French Bakery Ltd [1991] ERNZ 409;NZ (with exceptions) Food Processing etc IUOW v Unilever New Zealand Ltd [1990] 1 NZILR 35 |
| Number of Pages | 19 |
| PDF File Link: | 2011_NZERA_Auckland_506.pdf [pdf 96 KB] |