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Burch v Sensation New Zealand Ltd
12 Sep 2006, J Wilson, AA 288/06, (7 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Co-worker complained about applicant’s offensive language and behaviour - Applicant suspended after initial investigation - Dismissed after further investigation - Applicant on final warning for abusive and aggressive behaviour - Applicant claimed warning harsh and had intended to challenge it - Alleged dismissal predetermined and procedurally unfair - Applicant clearly advised behaviour inappropriate and could lead to dismissal - Intention to challenge warning did not detract from its very clear message - Applicant appeared to decide, despite warnings, management style appropriate and ignored explicit and repeated instructions - Allegation of predetermination unable to be substantiated - Any deficiencies in investigation process not of such magnitude to render dismissal unjustified - Fair and reasonable employer would have dismissed - Dismissal justified - Length of service three years nine months - Production coordinator
Result: Application dismissed ; Costs reserved
Haapu v Cityline (NZ) Ltd
14 Sep 2006, L Robinson, WA 124/06, (10 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed two previous warnings unjustified - Warning issued when applicant admitted abandoning bus with engine running - Authority considered respondent dealt with matter in very generous way - Second warning for taking adult fare but issuing child ticket - Applicant claimed mistake and not wilful - Respondent entitled to issue warning and put applicant on notice conduct unacceptable - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Respondent began investigation into alleged misuse of "transfer off" key but dismissed applicant for theft - No evidence of theft and respondent not entitled to reach that conclusion - Also, respondent maintained applicant failed to follow procedure but Authority found no clear procedure communicated to employees - Delay in putting allegations to applicant unfair and prejudiced ability to respond - Not persuaded dismissal met Honda standard - Dismissal unjustified - Remedies - Unsafe to regard frequent use of "transfer off" key as blameworthy conduct - Dismissal severable and independent from warnings - Reinstatement ordered - Recommendation respondent attend to informing employees in relation to issue of transfer tickets and paper feed operations, and record procedures in writing - Suggestion applicant would benefit from retraining - Applicant's adjudication for bankruptcy did not prohibit her seeking Authority's assistance - Length of service not specified - Bus driver
Result: Application dismissed (Unjustified disadvantage) ; Application granted (Unjustified dismissal) ; Reinstatement ordered ; Reimbursement of lost wages (Quantum to be determined by parties) ; Compensation for humiliation etc ($5,000) ; Recommendation ; Costs reserved
Herridge v The Chief Executive of the Inland Revenue Department
6 Sep 2006, D Asher, WA 117/06, (11 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant dismissed after voluntarily admitted accessing family member's tax records in breach of code of conduct - Accepted behaviour amounted to serious misconduct but contended significant disparity of treatment - Authority found it difficult, if not impossible, to conclude disparity occurred - Applicant admitted serious misconduct - Knew at time actions wrong and had led to dismissal - Alternatively, Authority satisfied dismissal justified notwithstanding disparity for which there was no adequate explanation - Applicant aware of code of conduct - Provision of significantly less comparative evidence than in Chief Executive of the Department of Inland Revenue v Buchanan (cited below) did not disadvantage applicant or prevent Authority determining matter - Even if unjustified dismissal, likely contributory conduct would be 100 percent - Dismissal justified - Length of service 10 years 5 months
Result: Application dismissed ; Costs reserved
Housham v Juken New Zealand Ltd
6 Sep 2006, L Robinson, AA 208A/06, (7 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant involved in physical altercation with another employee - Admitted pushing other employee away and trying to defend himself - Code of conduct prohibited fighting even if provoked - Respondent satisfied applicant involved himself physically in situation rather than removing himself - Considered applicant equally culpable - Re-enactment caused manager to conclude unlikely applicant pushed other employee as claimed and code of conduct breached - Authority did not accept applicant acted in self defence - Position not advanced during disciplinary process and applicant claimed initially ignored other employee's behaviour - Although applicant critical of re-enactment no issue raised about it at time - Full and fair investigation - Applicant's length of service and previous unjustified disadvantage taken into account - Fair and reasonable employer would take into account limited job opportunities in region and applicant's utility to other employees as active union member - Dismissal justified - Length of service five years two months - Pallet maker
Result: Application dismissed ; Costs reserved
McClelland v The Supply Chain Ltd
12 Sep 2006, R Arthur, CA 138/06, (7 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Dismissed after respondent investigated applicant's complaint co-worker ("B") threatened him and kicked car - Respondent found applicant breached company rules by creating situation where confrontation inevitable - Concluded provoked B and accepted challenge to fight - Conclusion not one fair and reasonable employer could reach - Relied on causative steps that could not be not properly established or assumed - Respondent properly placed aside some comments allegedly made by applicant, but Authority not satisfied weight placed on comment applicant "looking forward" to fight what fair and reasonable employer would have done - Applicant claimed not really after a fight and comment "just talk" - Fair and reasonable employer would consider explanation plausible and give it more weight - Evidence employer could reasonably rely upon not sufficient to support finding actions outside tolerated range of 'workplace banter' - Misconduct finding not justified - Respondent acknowledged but for existing warnings would not have dismissed for level of misconduct that occurred - Fair and reasonable employer would not dismissed - Dismissal unjustified - Remedies - In assessing lost wages Authority made allowance for prospect applicant would have been dismissed soon for poor performance - Contributory conduct - Applicant responsible for initiating banter that led to altercation - Warnings for poor performance also factor - Contributory conduct 80 percent - COSTS - One day investigation meeting - Costs at lower end of usual daily tariff warranted - Length of service not specified - Operator
Result: Application granted ; Reimbursement of lost wages (Five weeks reduced to one) ; Compensation for humiliation etc ($3,000 reduced to $600) ; Costs in favour of applicant ($1,500) ; Disbursements ($70)(Filing fee)
McKenzie v Hawksbury Community Living Trust Inc
5 Sep 2006, H Doyle, CA 134/06, (7 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Dismissed for habitual lateness and failure to report lateness as required by previous warning - Earlier verbal warning for sleeping during shift justified - Authority did not accept applicant given ultimatum to drop mediation about verbal warning or be dismissed - Written warning for failure to record lateness on timesheet justified - Warned falsifying timesheet serious and could lead to dismissal - Lateness was less serious allegation and warning about possibility of dismissal not repeated - Dismissed when late twice more and failed to notify manager - Authority not satisfied sufficient focus by respondent on applicant's lateness and probably too much emphasis on previous disciplinary action for other issues - Fair and reasonable employer would not have concluded three incidences of unacceptable lateness constituted habitual lateness and serious misconduct - Failure to notify manager did not on its own amount to serious misconduct justifying dismissal - Dismissal unjustified - No unjustified actions that required separate remedy - Remedies - No policy about disciplinary action respondent could impose - Fair and reasonable employer would have given warning in terms of lateness and failure to notify manger - Contributory conduct 30% - Length of service six years - Caregiver
Result: Application dismissed (Unjustified disadvantage) ; Application granted (Unjustified dismissal) ; Reimbursement of lost wages (3 months less earnings)(reduced by 30%) ; Compensation for humiliation etc ($5,000 reduced to $3,500) ; Costs reserved
Rongonui & Anor v P Te Whata & Anor
15 Feb 2007, P Cheyne, CA 17/07, (6 pages)
PRACTICE AND PROCEDURE - Identity of employer - Applicant signed "agreement to contract" - Employer named on contract not Maori incorporation, as claimed by respondent, or other legal entity - Respondents clearly controlled shearing gang, and signed agreement - Applicant entered legal relationship with respondents trading as employer named in contract - Authority made order identifying respondents by full names - JURISDICTION - Whether employee or independent contractor - Although contract in language of contract for services and negated several usual incidents of employment, applicant not working on own account - Had no control over work conditions - Work integral to respondents business - Real nature of relationship employment - Employee - Applicant made submissions about fairness of terms and circumstances in contract - If had found relationship not employment, s6 Minors' Contract Act 1969 would have applied since applicant young (16 years old) - UNJUSTIFIED DISMISSAL - Applicant claimed threatened with violence - Left job after sworn at but agreed to return - Parties later argued about getting sheep into shed - Applicant said not his job - Told to leave and not come back - Initiative for termination of employment came from respondent - Words used could constitute dismissal and did so in circumstances - Nothing about respondent's response could have constituted actions of fair and reasonable employer - Unjustified dismissal - UNJUSTIFIED DISADVANTAGE - Given unjustified dismissal finding unnecessary to deal with disadvantage claim - ARREARS OF WAGES AND HOLIDAY PAY - Arrears of holiday pay due and owing - Respondent made "charitable tax" deductions from applicant's wages - Deducted wages due and owing, unless respondent could account for it by proving payment made to Inland Revenue - Length of service two weeks - Shearing gang presser
Result: Application granted ; Compensation for humiliation etc $2,000 ; Arrears of wages ($239.42)(charitable tax deduction) ; Arrears of holiday pay ($68.41) ; Costs reserved
Te Nana v Telecom New Zealand Ltd
29 Sep 2006, V Campbell, AA 306/06, (13 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Dismissed for alleged breaches of respondent's policies - Over two years applicant issued customers with credits apparently not entitled to - More likely than not applicant aware of policies - Applicant made informed choice not to have representation at disciplinary meeting - Claimed carried out actions without thinking and out of habit, but not for personal gain - Applicant argued not given opportunity to address matters as occurred and if had been regularly audited issues could have been dealt with earlier - Alleged unfairness as could not be expected to remember what happened over two years ago - Respondent required employees to make notations against customer accounts explaining actions to prevent this situation arising - Applicant accepted had not made notations as required - Issues not raised outside reasonable timeframe - Respondent acted fairly and reasonably in reaching conclusion applicant's actions sufficiently serious to warrant dismissal - Dismissal justified - Length of service two years nine months - Team leader
Result: Application dismissed ; Costs reserved
Williams v The Supply Chain Ltd
15 Sep 2006, H Doyle, CA 140/06, (7 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Covert video camera filmed applicant accepting kneepad from another employee - Applicant aware actions breached company rules but did not accept intended to steal property - Claimed discarded kneepad at workplace but respondent unable to recover it - Investigation full, fair, and met requirements in collective employment agreement - Fair and reasonable employer would consider conduct amounted to unauthorised possession of company property and serious misconduct - Respondent considered applicant's long service, but it also counted against him as considered he knew rules, was looked up to by peers and should have stopped incident rather than contributed to it - Open to fair and reasonable employer to consider length of service in this way - Respondent also considered need to consistently apply rules and did not want to create precedent that unauthorised possession of property would result only in warning - Present case distinguished from Teao v Stormonts Bakeries Co Ltd (cited below) - Dismissal justified - COSTS - Length of investigation meeting less than one day - Appropriate to award $1,200 costs to respondent - Length of service 17 years - Warehouse operator
Result: Application dismissed ; Costs in favour of respondent ($1,200)
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