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Craig v Carter Holt Harvey Ltd
15 Jan 2008, A Dumbleton, AA 9/08, (11 pages)
UNJUSTIFIED DISMISSAL – Serious misconduct – Manager supplied with new mobile phone – Applicant started using phone after manager reverted to old phone – Without authority applicant allocated personal number to phone – Claimed phone belonged to third party, not respondent – Respondent concluded applicant’s actions amounted to theft – Applicant claimed respondent not justified in viewing actions as theft – Also claimed respondent did not consider whether actions product of innocent mistake rather than deliberate intention to dishonestly take – Applicant also suggested more convenient for respondent to dismiss rather than continue restructuring negotiations – Implied term of agreement that employee will not use employer’s property for own purposes without permission – Term included property controlled and owned by employer – Applicant knew property controlled by respondent as part of own duties to administer control of phones – Full and fair inquiry conducted – Reasonable for respondent to conclude applicant deliberately set out to breach rule – No substantial grounds for applicant to conclude dismissal motivated by restructuring issues – Dismissal justified – Receptionist
Result: Application dismissed ; Costs reserved
Hand v Hayson
13 Aug 2007, Y Oldfield, AA 243/07, (4 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - No appearance by respondent - Claimed threatened and assaulted by supervisor while at work - Told respondent he would no longer work with supervisor - Respondent considered might have another role but applicant declined it as not full time - Paid final wages and left - Conduct of supervisor amounted to serious breach of respondent's obligations to provide safe workplace - Once aware of assault respondent obliged to take steps to ensure no further risk to applicant - Failure to do so meant applicant constructively dismissed - Remedies - Applicant young and relatively new to work force - Entitled to substantial award of compensation - Given labour shortage, Authority not satisfied applicant made real effort to mitigate loss - No award of lost earnings - COSTS - Less than one day investigation meeting - Applying tariff approach $500 contribution appropriate - Cleaner
Result: Application granted ; Compensation for humiliation etc ($10,000) ; Costs in favour of applicant ($500)
Maxwell v Thomas
17 Sep 2007, Y Oldfield, AA 287/07, (4 pages)
UNJUSTIFIED DISMISSAL - No appearance by applicant - Authority determined matter on basis of evidence taken at previous meeting - Agreement between parties initially expressed to be casual - However, applicant began working long hours every week and Authority satisfied employment effectively became permanent - Applicant advised needed to travel overseas urgently for family reasons - Respondent offered to pay applicant his holiday pay to help him in circumstances - Told applicant no pressure to return quickly as relief driver engaged - Respondent expected applicant would advise when would return to work - Claimed did not hear from applicant until received letter seeking wage records and reason for dismissal - Respondent replied stating employment not terminated and told Authority would be glad to have applicant return to work - Appeared applicant drew incorrect conclusion from payment of holiday pay and engagement of relief driver - No dismissal - Driver
Result: Application dismissed ; No order for costs
McKenzie v Extensions to Life Ltd
21 Jan 2008, H Doyle, CA 6/08, (16 pages)
UNJUSTIFIED DISMISSAL – Misconduct – Employment ended after two weeks – Applicant employed as care coordinator for first respondent’s disabled son “D” – “D” required full time care after serious car accident – Other staff raised complaints and concerns of applicant – Witness claimed applicant made inappropriate comments about resuscitating “D” and told other staff D’s file “made for good reading” – First respondent claimed could not trust applicant to properly care for “D” – Summary dismissal – Viewed objectively comments not in good taste, however, not misconduct that fair and reasonable employer would decide should lead to dismissal – Applicant not advised of nature of allegations – Not advised employment could be terminated or entitled to representative – First respondent claimed had to take immediate action to protect “D” – Applicant not provided with real opportunity to explain – First respondent had made up mind to terminate prior to disciplinary meeting – Fair and reasonable employer would have approached allegations with open mind – Applicants failure to return file when asked not what fair and reasonable employer would consider misconduct that justified summary dismissal – No proper investigation – Fair and reasonable employer could not have reached view on serious allegations without further investigation – Process unfair – Procedural and substantive respects in case inseparable – Dismissal procedurally and substantively unjustified – Applicants inappropriate comment contributed to situation that gave rise to grievance – Contributory conduct 10 percent – Care coordinator
Result: Application granted ; Reimbursement of lost wages ($5,334.92 reduced to $4,801.43) ; Compensation for humiliation etc ($7,000 reduced to $6,300) ; Penalty ($300)(Payable to applicant) ; Costs reserved
Mikara and Ors v Crusader Meats New Zealand Ltd
24 Jan 2008, D King, AA 22/08, (10 pages)
UNJUSTIFED DISMISSAL – Applicants took other employment during period of lockout – Lockout lifted early – Respondent gave applicants opportunity to continue employment if returned on specified date – Applicant claimed requirement to return on specified date unreasonable as had to give few days notice to alternative employer – Respondent claimed actions constituted resignation, or alternatively termination when failed to attend work following lifting of lockout – Discontinuance of employment contemplated a limited cessation of employment and not an actual dismissal – While obligation suspended S96(i) and (ii) Employment Relations Act 2000 ("ERA") provided clear intention that legislation did not contemplate termination of employment during lockout – Wage/work bargain fundamental part of employment relationship discontinued during lockout – No obligation on employer to provide work or pay employee, concomitantly, employee under no obligation to work or expect to receive wages – Nothing in ERA or employment agreement prevented locked out employee taking alternative employment – Alternative employment did not interfere with obligations to respondent – Taking alternative employment during lockout not repudiation of existing agreement or resignation – Employment agreement provided employees absent from work for three consecutive working days and without contact deemed to have terminated employment – Applicants told respondent would return to work – Parties made express provision for abandonment – Failure to return to work considered pursuant to provision – Clear to respondent applicants intended to perform obligations under contract – Appropriate inquiries not made about intention to return to work and reasons for not being able to return when requested – Dismissals unjustified – Reinstatement ordered – Applicant’s failure to return on specified date contributed to situation that gave rise to personal grievance – Contributory conduct 25 percent - Meat workers
Result: Application granted ; Reinstatement ordered ; Reimbursement of lost wages (Quantum to be determined between parties) ; Compensation for humiliation etc ($3000 reduced to $2250)
O'Neil v Super Butcher (Thames) Ltd
4 Dec 2007, V Campbell, AA 383/07, (6 pages)
UNJUSTIFIED DISMISSAL – Constructive dismissal - No appearance for respondent – Applicant 14 years old when commenced first job during school holidays at respondent – During conversation store manager (“V”) suggested applicant should go with him to USA, and asked what her parents would say if left with him – Applicant thought V joking – V later followed applicant into meat chiller, and kissed her on the cheek – Applicant shocked and scared - After short time V stepped aside and let her leave – Returned to work because thought had to stay to finish shift – Applicant left work and never returned – V acknowledged behaviour – V’s conduct egregious and constituted breach of duty to applicant, and respondent’s statutory duty of good faith – Could be no doubt breaches sufficiently serious to make it reasonably foreseeable applicant might leave employment as result – Had incident not occurred, applicant would not have left employment – Causal link established – Constructive dismissal
Result: Application granted ; Reimbursement of lost wages ($119)(2 days) ; Compensation for humiliation etc $3,000) ; Disbursements ($70)(Filing fee)
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