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Chandler v Prime Pine Kaikoura Ltd
28 Jan 2009, H Doyle, CA 10/09, (11 pages)
UNJUSTIFIED DISMISSAL – Summary dismissal - Serious misconduct – Co-worker (“D”) pushed applicant – Applicant made racist remark and stated if D put hands on applicant again, would injure D with hammer (“threat”) – Applicant reiterated threat at first disciplinary meeting and did not retract at later disciplinary meeting - Applicant dismissed – Manager at time (“C”) gave evidence would not have dismissed applicant for defamatory and racist language alone - Authority concluded that although dismissal letter stated dismissal for threat and racist language, real reason solely threat – Authority considered whether threat constituted serious misconduct – Found fair and reasonable employer must take relevant circumstances into account in making assessment about conduct and its seriousness – Relevant circumstances were D pushed applicant following heated exchange; applicant requested assistance from C; C initially passed it off as joke and did not respond; applicant and D separately approached C; both subject to disciplinary processes – Threat first made in heat of moment, but later reiterated and not retracted – Fair and reasonable employer would have concluded that threats serious – Respondent had health and safety obligations to D and serious injury could have resulted if threat carried out – Found threat amounted to serious misconduct - Applicant protested D only received final warning as outcome – Authority applied legal test for disparity of treatment – Found conduct arose from same circumstances – Applicant did not physically respond to push, but called C to intercede - Threat was to take matters into own hands if D assaulted applicant again – Authority objectively found disparity of treatment between D and applicant – File note of previous verbal warning to applicant was inadequate explanation for disparity of treatment – Respondent did not conclude that D intended to assault applicant nor find assault was accident – Authority found fair and reasonable employer would not have concluded that threat more serious than assault, as both serious matters – Found no adequate explanation for disparity in treatment – Authority considered whether dismissal justified notwithstanding no adequate explanation for disparity – Found fair and reasonable employer would not have arrived at different disciplinary outcome for D and applicant in circumstances – Dismissal unjustified – REMEDIES – Applicant’s language offensive and racially abusive – Threat intimidated co-workers and impacted on level of trust C and co-workers had in applicant – C previously spoke to applicant about unacceptability of screaming and yelling – Lesser penalty could only have been final warning – Sixty percent contributory conduct – Applicant claimed lost wages from date of dismissal to date of investigation meeting – Applicant received sickness benefit for short period then on unemployment benefit – No evidence of attempts to find other work – Found not a case where Authority would exercise discretion and award more than three months ordinary time remuneration – Awarded thirteen weeks wages, less sixty percent contributory conduct – Quantum to be determined – COSTS – Applicant represented self – Applicant entitled to filing fee - Forklift driver/factory hand
Result: Application granted ; Reimbursement of lost wages (7.8 weeks) ; Disbursements in favour of applicant ($70)(filing fee)
Choveaux v Accident Compensation Corporation
28 Apr 2008, G J Wood, WA 50/08, (3 pages)
COSTS - Partially successful personal grievance - Two day investigation meeting - Applicant claimed $30,000 costs - Applicant relied on respondent’s refusal to reinstate applicant, personal attacks made on applicant, and successful unjustified dismissal claim - Respondent raised concern about eight month delay in applicant claiming costs - Respondent claimed applicant made no offer to settle, unsuccessful in claims for reinstatement and unjustified disadvantage, which occupied much time before Authority, and was finding of contributory conduct - Authority found not case justifying indemnity costs - Authority accepted lot of time in investigation meeting spent scrutinising unsuccessful unjustified disadvantage claim - Respondent entitled to some credit in costs setting for its success, but was necessary to traverse a lot of that material as background to unjustified dismissal - Costs to lie where they fall with respect to that part of claim - No deduction made for lateness of costs claim - In all circumstances Authority concluded appropriate contribution to applicant’s costs was $3,000
Result: Costs in favour of applicant ($3,000)
Edmonds v Allied Petroleum (NI) Ltd
28 Apr 2008, G J Wood, WA 6A/08, (2 pages)
COSTS - Unsuccessful personal grievance - One day investigation meeting - Authority disregarded respondent’s costs submissions where referred to events during mediation - Respondent sought at least $24,000 costs - Respondent relied on Calderbank offer, unmeritorious nature of applicant’s claims, applicant’s conduct, and unwillingness to resolve costs by agreement - Applicant submitted costs should lie where they fall or alternatively be modest - Submitted already suffered significant financial and emotional costs - Authority found applicant’s claim not out of the ordinary - As applicant unsuccessful must expect to pay reasonable contribution to respondent’s cost - No evidence applicant unable to pay costs award - In all circumstances award of $3,000 costs plus expenses appropriate
Result: Costs in favour of respondent ($3,000) ; Disbursements ($648)
Joyce v Cotton t/a Emerson Breakdown Service
18 Feb 2009, D King, AA 54/09, (3 pages)
UNJUSTIFIED DISMISSAL – No written employment agreement – No appearance for respondent – Authority’s decision based on applicant’s evidence – Applicant claimed heard rumours that respondent going to terminate employment but nothing said to applicant – Respondent told applicant not to worry about wages as just quiet period – Applicant telephoned respondent to enquire about wages and was told no longer had job and had been given notice two weeks prior – Applicant claimed given no notice – Authority found dismissal unjustified – Remedies – Authority satisfied applicant entitled to notice period, reimbursement of lost wages and compensation for humiliation etc - ARREARS OF HOLIDAY PAY – Wage and time records requested but not supplied - Applicant unsure how much annual leave taken, but claimed owed at least four weeks’ annual leave – Authority satisfied four weeks’ annual leave owing - COSTS – Authority found applicant’s costs reasonable - Respondent to pay applicant’s full costs plus filing fee - Breakdown service technician
Result: Application granted ; Reimbursement of lost wages ($2,400)(three weeks plus one week in lieu of notice) ; Compensation for humiliation etc ($4,000) ; Arrears of holiday pay ($2,400) ; Costs in favour of applicant ($1,250) ; Disbursements in favour of applicant ($70)(filing fee)
Talataina v Guardian Healthcare Group Ltd
30 Apr 2008, Y S Oldfield, AA 119A/08, (2 pages)
COSTS - Successful personal grievance - Less than one day investigation meeting - Applicant represented by union, which bore costs of claim - Applicant argued unions may recover costs in cases where supported members in litigation - Argued reduction of remedies for contributory conduct should not affect costs award as costs should not be element of remedy assessment - Applicant sought contribution to costs of $1,250 - Respondent argued costs should lie where they fall as relative success of parties was relevant consideration and contributory conduct should be taken into account in costs awards - Authority found although costs normally follow event and set with regard to success of parties, not punitive of conduct already dealt with - In all circumstances modest level of costs award appropriate
Result: Costs in favour of applicant ($500) ; Disbursements ($70)(Filing fee)
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