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Cooke v Panda Catering Ltd
25 Jul 2007, RA Monaghan, AA 218/07, (2 pages)
UNJUSTIFIED DISMISSAL - Triangular employment relationship - Respondent provided catering services at Eden Park - Applicant employed by respondent - Applicant involved in incident in main kitchen - Claimed expected further shifts but none given - Applicant filed employment relationship problem nearly three years after problem arose - Respondent had claimed employment casual - No appearance for respondent - Respondent lost catering contract - Unrelated company obtained contract and purchased respondent - Respondent no longer existed - Authority could not investigate further
Result: Application dismissed ; No order for costs
Mitchinson v The Chief Executive of the Department of Corrections
9 Nov 2007, H Doyle, CA 132/07, (30 pages)
UNJUSTIFIED DISMISSAL – Serious misconduct – Respondent claimed applicant falsely declared injury during Control and Restraint (C&R) training – Applicant’s doctor (“J”) diagnosed sprain and ACC form completed – Operations manager (“L”) failure to obtain evidence from J significant omission in investigation – Evidence would have led to different conclusions – Investigation focused on what was seen during C&R and applicant’s subsequent actions – Timeline provided to “L” as part of investigation – L questioned other employees about applicant’s intention to participate in C&R – Other employees said no indication applicant not going to participate in C&R – Questions asked of other participants in C&R inconsistent – Unclear why certain statements rejected – Consistent physical evidence of recent injury – Applicant able to provide detail of exercises done during C&R – Interviews undertaken some weeks after C&R – Fair and reasonable employer would have been cautious about reliability of individual recollections of C&R – Analysis of statements undertaken on basis that information of some participants to be believed and other information not to be believed – Only trainer adamant applicant did not participate – Fair and reasonable employer would have considered possibility applicant undertook exercises without trainer seeing – Ambiguity in statements not taken into account, instead interpretation least favourable to applicant accepted – No reason to conclude some witnesses lying – Analysis of participants’ interviews flawed – Evidence favourable to applicant rejected without good reason – Sector manager (“B”) concluded applicant did not make anyone aware of injury and failed to complete work accident report – Fair and reasonable employer faced with conflicting accounts would have realised need for medical information – Applicant claimed advised “V” of injury and intended to obtain accident report – V’s statement, consistent with applicant’s version of events, dismissed – Clear example of closed mind approach to investigation – Significant flaws in investigation – Considered objectively L and B’s minds turned against applicant so favourable matters not considered or investigated and simply dismissed or ignored – Fair and reasonable employer not justified in concluding serious misconduct or that applicant falsely declared work injury – Not completing accident report would not be considered serious misconduct by fair and reasonable employer – Dismissal unjustified – Remedies -Applicant failed to make fact sustained injury clear – Contributory conduct percent - Reinstatement ordered – Prison instructor
Result: Application granted ; Reinstatement ordered ; Reimbursement of lost wages ($53,551.13 reduced to $48,196.02)(48 weeks) ; Compensation for humiliation etc ($20,000 reduced to $18,000) ; Costs reserved
Stewart v Century 21 Huntly, Morrinsville & Papakura Ltd
30 Apr 2007, V Campbell, AA 129/07, (10 pages)
UNJUSTIFIED DISMISSAL - Summary dismissal - Whether dismissed or resigned - Manager queried applicant's management of client's property and level of communication with client - Applicant sent email to client outlining impending tenancy of client's property and left office - Manager claimed spoke to client and decided applicant lied - When applicant returned to office heated argument ensued - Authority found in no uncertain terms applicant told to leave workplace - Manager claimed applicant told him to "stick his job" - Applicant said "I'll resign" - Statement intended to convey her intention if shouting and bad language continued - Applicant left office and did not return - Provided medical certificate not fit to work when handed in keys - Handing back keys consistent with understanding had been dismissed - Manager's conduct in swearing and telling applicant to go dismissive and repudiatory - Even if wrong on point, manager's conduct plainly invited resignation which would have amounted to constructive dismissal - Dismissal - Manager's conduct outrageous - Failed to undertake investigation disclosing conduct a fair and reasonable empoyer would regard serious misconduct - Conduct in contravention of procedural fairness and fell short of obligation to be constructive in maintaining productive employment relationship - Failed to comply with terms of employment and follow own procedures - Dismissal unjustified - ARREARS OF HOLIDAY PAY - Without agreement respondent paid applicant as if on annual leave following dismissal - - Manner of payment during notice period had effect of reducing applicant's statutory entitlements - Holiday pay due and owing - Conduct warranted interest award - Interest 8.5 percent - Property manager
Result: Application granted ; Reimbursment of lost wages ($4,742)(13 weeks less 5 weeks pay following dismissal) ; Compensation for humiliation etc ($5,000) ; Arrears of holiday pay ($873.60) ; Interest 8.5% ; Costs reserved
Taurima v White Gloves Television Productions Ltd
27 Apr 2007, M Urlich, AA 126/07, (14 pages)
UNJUSTIFIED DISMISSAL - Applicant claimed on same day promised ongoing work, was dismissed when requested outstanding wages - Respondent claimed applicant employed on successive fixed term agreements based on funding it received to develop or produce television programmes - Claimed employment ended by expiry of fixed term or alternatively applicant resigned - Whether dismissed or resigned - Whether fixed term employment - Pay sheets showed applicant's work covered 12 distinct terms separated by periods where no work provided and she received no pay - Employed on series of fixed term agreements prior to amendment to s66 Employment Relations Act 2000 ("ERA") - Respondent claimed amendments not relevant because terms of fixed term agreed to prior to - "Key personnel form" was evidence a fixed term agreement entered into prior to date amendments came into effect - Section 66 obligations met - Amendments did not superimpose obligations on existing fixed term agreements - ARREARS OF WAGES - Applicant claimed respondent unlawfully deducted monies from amount should have received as production manager - Not unlawful deductions, rather applicant's employment agreement, as to timing of payments, varied without her consent - PENALTY - Applicant sought penalty for failure to provide written employment agreement -
Result: Applications granted ; Damages ($3,070) ; Penalty ($5,000)(Payable to Crown) ; Costs reserved
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