| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 514 |
| Hearing date | 22 Nov 2011 |
| Determination date | 05 December 2011 |
| Member | E Robinson |
| Representation | no appearance ; N McPhail |
| Location | Auckland |
| Parties | Wano v Skellerup Rubber Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – No appearance by applicant – Applicant claimed unjustifiably dismissed by respondent – Respondent issued applicant final written warnings in relation to unsafe work behaviour and poor work performance – Respondent investigated complaint from customer that received roller which had not been machined to correct specifications – Respondent concluded applicant had set up lathe correctly but made errors when machining roller and in order to cover up mistakes deliberately reset lathe prior to checks being carried out – Applicant failed to provide alternative explanation – Respondent dismissed applicant on basis applicant deliberately mislead respondent and lost respondent’s trust and confidence – Authority found relevant test contained in amended s103A Employment Relations Act 2000 – Found respondent followed fair and reasonable procedure – Found applicant did not have representative at disciplinary meeting but had been informed of right and meeting would have been adjourned if applicant expressed preference to obtain representation – Found respondent’s decision to dismiss applicant for serious misconduct reasonable – Dismissal justified – RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Applicant claimed unjustifiably disadvantaged by respondent due to warnings – Respondent claimed grievance raised outside 90 day period – Found no evidence applicant raised grievance within 90 day period following issuing of either warning – BARGAINING – Applicant claimed deadlock between parties in concluding employment agreement (“EA”) – Found applicant initialled and signed EA – Found no evidence of deadlock between parties in concluding EA – GOOD FAITH – Applicant claimed respondent breached good faith requirements by failing to comply with health and safety requirements and acting in good faith towards applicant – Respondent claimed had extremely good health and safety compliance standard – Found no evidence respondent breached good faith requirements owed to applicant – PENALTY – Found applicant’s and representative’s conduct obstructive to investigation – $3,000 penalty appropriate – COSTS – Half day investigation meeting – Respondent sought $6,145 contribution to costs and $688 travel disbursements – Found applicant’s behaviour addressed by way of penalty – Found applicant’s behaviour did not lead to respondent filing further submissions – Applicant to pay $1,500 contribution to respondent’s costs – Found travel disbursements claimed appropriate – Lathe Operator |
| Result | Applications dismissed (unjustified dismissal) (raising personal grievance) (bargaining) (good faith) ; Application granted (penalty) ; Penalty ($3,000)(Payable to respondent) ; Costs in favour of respondent ($1,500) ; Disbursements in favour of respondent ($668)(Travel) |
| Main Category | Personal Grievance |
| Statutes | ERA s65(2)(vi);ERA s103A;ERA s103A(3);ERA s114;ERA s134A(1);ERA s135(2);ERA s136(2)(b);ERA Second Schedule cl12 |
| Cases Cited | PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808;Secretary for Justice v Dodd [2010] NZEmpC 84 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Auckland_514.pdf [pdf 59 KB] |