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Ayers v Quad 2000 Ltd
12 Nov 2007, P Montgomery, CA 136/07, (5 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant summarily dismissed when respondent thought smoking cannabis at work - Claimed actually smoking roll-your-own cigarette - Respondent's director searched car at time but found no evidence to support allegation - Full inquiry may have established one of other employees responsible for smell on applicant's clothing - While search of vehicle practical step to take it fell well short of what fair and reasonable employer would have done in circumstances - Dismissal unjustified - Remedies - Applicant sought 20 weeks lost wages but Authority mindful respondent modest enterprise and award as sought could bring heavier burden than warranted - COSTS - ½ day investigation meeting - Applicant sought costs of $4,000 - Claimed additional time necessary due to respondent's lack of co-operation - Appropriate to award $2,200 contribution to costs - Plasterer
Result: Application granted ; Reimbursement of lost wages ($7,280)(13 weeks) ; Compensation for humiliation etc ($4,500) ; Holiday pay ($92.47) ; Costs in favour of applicant ($2,200)
Callen v Marie Sanderson t/a Marie's Early Childhood Learning Centre
24 May 2007, K Raureti, AA 158/07, (8 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Identity of employer - Applicant employed by company, not director personally - Director remiss in not correctly stating identity of employer in employment agreement, but no evidence applicant misled or deceived - Not just and equitable for director to be personally liable - Applicant being trained in total operation of business because planned to take up position as licensee - At end of first week's employment, decided to resign - Spoke with other staff about decision and handed in written resignations from all staff along with her own - Dispute arose over amount of administrative work applicant to do during notice period - Applicant insisted on keeping administrative hours despite respondents attempts to remove those duties from her - Respondent denied dismissing applicant after heated exchange, instead claimed suspended her to conduct investigation into several allegations - At disciplinary meeting, applicant presented prepared statement and sought more information about some allegations - Respondent did not accept applicant's explanations or requests for more information - Summarily dismissed applicant - No full and fair investigation - Dismissal unjustified - Remedies - Respondent's request applicant spend more time teaching than learning administrative tasks reasonable given resignation and terms of employment agreement - Applicant deliberately defied director's authority - Contributory conduct 20 percent - ARREARS OF WAGES - Applicant claimed paid at wrong salary rate - Higher rate specifically negotiated for extra responsibilities associated with licensee responsibilities had yet to take up - Applicant paid at correct rate - Entitled to be paid in full for days respondent sent her away as part of disciplinary process, but not for other absences - PRACTICE AND PROCEDURE - Counterclaim - Respondent sought large sum as damages - Claim not particularised and lacked sufficient detail to enable thorough investigation - Separate investigation set down but respondent sought adjournment - Counterclaim adjourned sine die - Team leader
Result: Application granted ; Reimbursement of lost wages (Two weeks reduced by 20%) ; Compensation for humiliation etc ($1,000 reduced to $800) ; Arrears of wages (Quantum to be determined) ; Counterclaim adjourned sine die ; Costs reserved
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Edwards v Regent Training Centre Ltd
21 May 2007, R A Monaghan, AA 154/07, (13 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Respondent questioned several of applicant's financial transactions - Petty cash and bank account rules not followed - Wages being paid to staff member ("RC") not on payroll - Applicant claimed office manager overworked but considered director unlikely to authorise employment of another staff member - Engaged RC anyway and submitted invoices for wages instead of adding her to payroll - Told respondent RC short-term casual to assist office manager - Weak attempt to justify engagement - PAYE and employment obligations not met - Director required RC's employment to end - Applicant created back-dated letter for RC to sign, stating casual contractor responsible for own tax despite express refusal to be contractor when engaged - RC did not sign letter and passed it to respondent - Even if had established RC a contractor, unlikely letter would have assisted with applicant's circumvention of restriction on engaging staff - Behaviour not good faith - Respondent approached private investigator to make independent enquiries about RC, petty cash shortfall and further concern applicant frequently absent from work - Led to disciplinary proceedings - Meeting adjourned when applicant declined to comment until further detail provided - During adjournment director concluded no longer wanted applicant in workplace unsupervised - Applicant suspended on fully pay - Did not accept applicant's assertion unaware of nature of issues and decided on facts "as known" no option but to dismiss - Decision made without applicant responding to issues in context of disciplinary proceedings - Authority did not accept applicant already knew nature of all allegations, entitled to require more details - Did not refuse to respond at all - Respondent not entitled to consider facts already "known" - Dismissing applicant without putting detail of concerns to him and obtaining response unjustified - Dismissal unjustified - Applicant claimed left new employment because of stress related to dismissal - Authority not prepared to accept bare assertion - Causal link between grievance and lost remuneration weakened - But for shortcomings in disciplinary process, justified dismissal could have resulted - Lost wages limited to notice period - Manager
Result: Application granted ; Reimbursement of lost wages ($4,230.77) ; Compensation for humiliation etc ($3,000) ; Holiday pay ($338.36) ; Costs reserved
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Tamati v New Zealand Life Care Ltd (in receivership) t/a Glenbrook Lodge Ltd
28 May 2007, D Asher, WA 86/07, (8 pages)
UNJUSTIFIED DISMISSAL – Misconduct - No appearance by respondent - Respondent’s business and assets sold – Receivers advised insufficient funds to defend claim or pay any awards – Applicant asked determination be issued – Respondent received complaint alleging applicant abused resident and suspended applicant suspended on pay – Concluded applicant admitted serious misconduct and summarily dismissed her – Applicant accepted verbally abused resident, if speaking to him in loud voice and saying amongst other things he was lazy amounted to abuse – Applicant’s agreement significantly qualified - Fair and reasonable scrutiny of applicant’s position would have made clear she did not accept abusing resident and not open to respondent to rely on “admission” – Applicant adamantly denied assaulting resident – Evidence of other employees supported applicant’s position – Not clear why respondent relied on part of residents compliant but not all of it, particularly when other evidence supported applicant’s position – Respondent did not establish admitted loud voice breached employee policy - Significant disparity of treatment as respondent declined to investigate, and took no action, when co-worker admitted speaking in similar way to resident - Unilateral suspension unjustified, however respondent did make right some other procedural defects - Applicant's behaviour had some elements of abuse and was misconduct, but did not amount to serious misconduct warranting summary dismissal - Dismissal unjustified - Remedies - Length of service and sense of injustice arising out of disparity of treatment taken into account when awarding compensation - Resident and respondent entitled to more considerate behaviour - Contributory conduct 30 percent - Caregiver
Result: Application granted ; Reimbursement of lost wages ($1,800 reduced to $1,260) ; Compensation for humiliation etc ($10,000 reduced to $7,000) ; Costs ($1,500)
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