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Davies v Cityline (NZ) Ltd t/a Stagecoach Auckland
17 Oct 2006, L Robinson, AA 321/06, (11 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed after supervisor complained applicant verbally abusive and aggressive, and left bus unattended because unhappy with bus route - Respondent entitled to prefer supervisor's statement over applicant's equivocal denial - Full and fair process concluded applicant abused another employee - However, although applicant used bad language and displayed unacceptable attitude, did not direct abuse at supervisor - Did not constitute "abuse of an employee" justifying summary dismissal under collective agreement - Behaviour not repudiatory rendering continued relationship impossible - Taking into account applicant's service and previous warnings, fair and reasonable employer would not have reached decision to dismiss - Final warning would have been appropriate response - Unjustified dismissal - Remedies - Applicant equally as responsible for grievance as respondent - Failed to mitigate losses - Contributory conduct 50 percent - Also claimed six years wages as loss of future benefits - No entitlement given lack of certainty applicant would have worked at respondent for next six years - If sought would have reinstated - Duress - Applicant alleged at meeting respondent exerted undue influence on him to remain union member - No undue influence - No duress - BREACH OF CONTRACT - Damages for breach of contract arising out of dismissal not permissible - Length of service seven years seven months - Bus driver
Result: Application granted (Unjustified dismissal) ; Compensation for humiliation etc ($5,000 reduced to $2,500) ; Reimbursement of lost wages ($7,800 reduced to $3,900)(three months) ; Application dismissed (Duress, breach of contract)
Watt v Canterbury District Health Board
11 Aug 2006, P Cheyne, CA 122/06, (17 pages)
UNJUSTIFIED DISADVANTAGE - Alleged bullying and "mobbing" behaviour by colleagues Applicant removed from "family therapy team" ("FTT") - Prior unsuccessful grievance concerning non-appointment to manager position - Estopped from asserting historical bullying claims dealt with in earlier determination - Being prevented from involvement in FTT by removal, and other roles, would have made work significantly less satisfying - Loss of work, even if restored after six months, disadvantaged applicant - Managers should have canvassed feelings of mistrust with applicant before removed him from FTT - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Dismissed for serious incompatibility - Conflict created significant barrier to performance of many of applicant's duties - Applicant's belief in truth of historical bullying claims powerful factor in explaining his behaviour - Failure to conduct himself with colleagues on basis historical claims wrong largely caused conflict - No evidence dismissal pre-determined or respondent withheld redeployment options - Dismissal justified - BREACH OF CONTRACT - No evidence applicant's career development suffered - Colleagues' refusal to work with applicant not breach of trust and confidence or any express term of employment - Clause in collective agreement required respondent to treat applicant fairly, properly and openly - Concerns causing respondent to remove applicant from FTT not put to him - Removal without consent express or implied breach - Disadvantage finding also amounted to breach of express and implied terms of employment agreement - Remedies - No pecuniary loss caused by breaches - Could not be double recovery of compensation and damages for same incident - Breach not material cause of irreconcilable conflict that resulted in dismissal, nor did it contribute in material way to applicant's stress, leading to three months of sick leave - Length of service 21 years with respondent and its predecessors - Psychiatric nurse
Result: Application granted (Unjustified disadvantage, breach of contract) ; Damages ($5,000 for two breaches) ; Application dismissed (Unjustified dismissal) ; Costs reserved
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