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McNeill v Solid Energy New Zealand Ltd
1 May 2007, YS Oldfield, AA 136/07, (6 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant dismissed for falsifying sick leave in breach of contractual obligations and policy - Previously warned for taking unauthorised leave - Applicant called in sick and went on pre-booked two day fishing trip - Applicant union delegate - Represented co-worker during disciplinary process regarding co-worker's absence without leave during same fishing trip - Applicant did not mention had been on trip - Manager heard rumours, commenced inquiry and suspended applicant - Concluded applicant should have consulted shift manager or made himself available for alternative duties - Applicant confirmed investigation thorough, but claimed not open on evidence to conclude he falsified a sick leave - Claimed did not think did anything wrong as was just fishing whilst sick - Also believed being delegate affected way treated in investigation - Claimed when applicant arranged for friend to call in sick for him was serious misconduct, and "false declaration" under collective employment agreement ("CEA") - Respondent entitled to conclude applicant misled it by having friend call in sick on second day - Asked friend to say something possibly false and made himself unavailable for work - CEA provided unlimited sick leave and respondent to work with union to resolve attendance issues - Given absences in excess of minimum statutory entitlement, absences governed by CEA - Conduct misleading or fraudulent misuse of sick leave - In first instance, poor attendance from misuse of sick leave less than serious misconduct in CEA - No evidence respondent attempted to resolve attendance issues prior to dismissal - Misuse could not be elevated to serious misconduct without exhausting CEA procedures on poor attendance - Did not apply provisions and failed to use procedures - Fair and reasonable employer would not have dismissed until had done so - Dismissal unjustified - Remedies - Contribution at higher end of scale - Reinstatement totally impracticable - Contributory conduct 50 percent - Mine electrician
Result: Application granted ; Reimbursement of lost wages (3 months reduced to 6 weeks)(Quantum to be determined by parties) ; Compensation for humiliation etc ($10,000 reduced to $5,000) ; Costs reserved
Nepia & Anor v AFFCO New Zealand Ltd
26 Apr 2007, PR Stapp, WA 59/07, (9 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicants accused of unauthorised possession and distribution of company product - Respondent conducted investigation into theft of meat - Respondent identified significant theft occurring at its freezing works - Installed cameras and hired private investigator - Confidential informants told respondent applicants were "thieves" - Applicants told of general allegation at meeting - Handed prepared suspension notice which included allegations - After further meeting applicants dismissed - Applicants denied stealing - Respondent relied on informants' evidence and applicants' failure to make comment or deny allegations - Claimed treated unfairly on basis allegation was a rumour and not given specific evidence or details of allegations - No issue arose about right to used informants in exceptional circumstances so long as acted fairly - Respondent relied on informants' information without giving particulars and details of incidents to applicants - Unable to satisfy responsibility to produce evidence of wrong-doing to match seriousness of allegation - Erred in failing to inform applicants of findings or give opportunity for input on penalty - Fair and reasonable employer would have given applicants notice adverse view would be taken if did not comment on allegations - Paucity of information meant applicants had nothing to comment on - Not sufficient for respondent to rest its decision on failure to comment - Dismissals unjustified - Remedies - Unable to determine whether applicants involved in stealing - No contributory conduct - Reinstatement of first applicant ordered - Boners
Result: Application granted ; Reinstatement ordered (RN) ; Reimbursement of lost wages (4 months)(Quantum to be determined)(RN) ; (3 months)(Quantum to be determined)(SM) ; Compensation for humiliation etc ($8,000)(RN, SM) ; Leave reserved to return to Authority on calculation of lost wages ; Costs reserved
Sammons v TPC Group Ltd
29 Mar 2007, J Scott, AA 95/07, (7 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Respondent in receivership - No appearance by respondent - Receivers’ advised Authority they did not intend to participate further in defence - As would lessen funds available to creditors - Authority in possession of some information from respondent regarding dismissal - Respondent claimed applicant under quoted on particular job and asked him to explain use of company credit card - Applicant not advised of purpose of meeting or given opportunity to be represented -Respondent alleged applicant refused to answer questions at meeting - Applicant explained quoted only on materials set out by client - Applicant claimed meeting concluded with his termination - Final wages calculated with deductions for credit card expenses - Claimed never gave authority for deductions - Final wages not paid because applicant declined to sign receipt as full and final payment - No evidence from respondent to support concerns - No evidence provided of nature of investigation conducted or evidence to demonstrate applicant treated fairly in process - Dismissal unjustified - Property maintenance manager
Result: Application granted ; Reimbursement of lost wages ($9,489.07) ; Arrears of wages and holiday pay ($3,067.33) ; Compensation for lost benefit (Company vehicle) ($2,500) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Southcombe v Freedom Air Ltd
2 May 2007, D King, AA 134/07, (5 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant dismissed for going on overseas trip while on sick leave - Had booked and paid for holiday before granted annual leave - Did not have adequate accrued annual leave to cover whole holiday - Applicant went on sick leave and provided medical certificates - Applicant's doctor encouraged him to go on holiday - Respondent alleged applicant not using sick leave for purpose it had been granted prior to his going overseas, and asked for clarification - When returned from holiday, disciplinary meeting held - Applicant admitted going overseas and that used unpaid sick leave in order to take it, and actions wrong - Dismissed following day - Applicant obliged to use sick leave honestly and properly - Given real opportunity to refute allegation and explain conduct - Sick leave not available to take overseas holidays - Purpose of sick leave fundamental in present case - Not possible to have absolute rules about appropriate sick leave activities - Authority commented activities undertaken on sick leave must be conducive to enabling recovery and return to work, and should not militate against recovery - Not granted unpaid leave for purposes of taking annual leave - Conduct of such gravity that respondent entitled to say had lost trust and confidence in applicant - Applicant knew actions wrong - Actions constituted misuse of sick leave - Fair and reasonable employer would have dismissed - Dismissal justified - Flight attendant
Result: Application dismissed ; Costs reserved
Tauhore v Farmers Trading Company Ltd
25 May 2007, GJ Wood, WA 84/07, (9 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant dismissed for assaulting co-worker outside workplace during work hours - Following incident sent co-worker abusive text message - Co-worker made formal complaint - Applicant advised of allegations and disciplinary meeting - Following another text message co-worker made complaint to Police - Applicant denied assault and that messages referred to assault - Applicant declined representation at meeting - Respondent rejected explanations and concluded applicant committed assault, sent texts, and made threatening statements to manager - Applicant trespassed from respondent's stores - Subsequently acquitted of criminal charge based on same events - Co-worker's evidence at trial inconsistent - Respondent claimed conducted full and fair investigation and concluded applicant committed assault - Respondent's evidence preferred - Authority rejected applicant's explanations not given prior to dismissal - Summary dismissal penalty open to respondent if serious breach of work rule found - Simply because dismissed for reasons later subject of criminal trial at which acquitted, did not follow that must have been unjustified dismissal - Fair and reasonable employer would have concluded applicant had on balance of probabilities assaulted co-worker - Seriousness of allegations taken into account - Together with applicant's subsequent actions, conduct justified summary dismissal - Decision-maker not required to approach task untainted by preconceptions - No predetermination or bias - Not required to run investigation in nature of criminal trial or adopt criminal standard of proof - Respondent's disciplinary guidelines followed - Failure to give witness statement to applicant not sufficient to make way respondent acted not substantially fair - Dismissal justified
Result: Application dismissed ; Costs reserved
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