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Burt v Alltrade Autoparts (NZ) Ltd
16 Mar 2007, YS Oldfield, AA 78/07, (3 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant dismissed for taking tyres without asking - Respondent claimed applicant warned for this, and attitude, before - Applicant denied being warned but agreed issues discussed before - Alleged arranged taking tyres with second co-owner and told first co-owner this before dismissed - On balance, Authority concluded applicant thought had permission - More likely than not mentioned this at disciplinary meeting - No notes of meeting, respondent's recall not good and co-owner did not attend investigation meeting - Applicant given benefit of doubt - Authority accepted written warnings never shown to applicant and not told job in jeopardy - Respondent's conduct fell short of minimum standards of fairness - Applicant not properly warned and respondent did not properly consider explanation for conduct that led to dismissal - First co-owner at end of tether and felt had to assert himself - Disciplinary meeting not conducted with open mind or care that should be shown when long serving employee at risk of losing job - Dismissal unjustified - Remedies - Respondent's chief complaint about applicant related to attitude - During investigation meeting Authority saw ample demonstration of attitude complained of - Applicant not prepared to acknowledge new boss - Contributory conduct 50 percent - Mechanic
Result: Application granted ; Reimbursement of lost wages ($7,000 reduced to $3,500)(14 weeks reduced to 7) ; Compensation for humiliation etc ($5,000 reduced to $2,500) ; No order for costs
Crawford v M Torok Holdings Ltd
26 Mar 2007, L Robinson, AA 91/07, (5 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent asked applicant to explain frequent use of "no sales" key - Claimed video surveillance footage showed client standing at counter at time "no sale" key used - Applicant denied being thief - Respondent asked applicant for keys - Applicant claimed also asked to leave premises and told being fired - Respondent denied dismissing applicant and claimed she simply did not return to work - Demand for key was sending away - Applicant dismissed - Minimum requirements of procedural fairness not met - No enquiry sufficient to support finding of serious misconduct - Not actions of fair and reasonable employer - Dismissal unjustified - Hairdresser
Result: Application granted ; Reimbursement of lost wages ($5,025.01)(Three months less earnings) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Crisp v Air New Zealand Ltd
20 Mar 2007, R A Monaghan, AA 81/07, (11 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Dismissed for excessive personal internet use - Applicant's explanation unaware of internet policy unsatisfactory - Also claimed often minimised screen without logging off - Weaknesses in respondent's method of calculating internet use - However, weakness no more than partially supported applicant's explanation and obvious non-business related sites accessed to extremely high degree - Suggestion someone else used computer login details unconvincing - While respondent's policy on accessing inappropriate sites clear, references to unauthorised activity, and wastage of time and resources indirect or generalised - Material not adequate to make position on non-business related access clear - Applicant admitted wasted time and resources but took issue with sanction imposed - Lack of clarity or specificity over acceptable non-business related use and inability to be exact about applicant's use relevant - Respondent's analysis probably overstated level of access - Summary dismissal not action fair and reasonable employer would have taken - Dismissal unjustified - Remedies - Appropriate to compensate applicant for injury to feelings as result of dismissal, rather than lesser sanction, being imposed - However, contribution to circumstances meant no further remedies warranted - Training co-ordinator
Result: Application granted ; Compensation for humiliation etc ($2,000) ; Costs reserved
Howard v Inner City Interagency Trust
12 Jul 2007, P Montgomery, CA 79/07, (11 pages)
UNJUSTIFIED DISMISSAL - Summary dismissal - Serious misconduct - Manager and applicant friends prior to employment - Employed at drop-in centre by manager - Applicant claimed manager's attitude towards her affected by out-of-work issues - Incident occurred involving visitor inhaling a white powder in centre lounge - Applicant claimed did not see incident and thus unable to intervene - Respondent believed applicant should have seen incident - Manager received complaints applicant present and did nothing to prevent or stop incident - Applicant handed letter of suspension with immediate effect - Told support person unnecessary and would be given opportunity to explain at investigation - Investigation held and applicant subsequently dismissed - Incident constituted serious breach of policy - Applicant aware of policies - Satisfied applicant did not see incident - Complainants not available at investigation meeting - Respondent deemed failure to observe incident serious misconduct, and concluded she deliberately condoned incident - Knowledge of identity of complainants denied on ground might intimidate them - Respondent gave too little weight to applicant's handling of prior similar incident - Respondent created expectation applicant would have opportunity to comment prior to confirmation of penalty - Fair and reasonable employer would have considered matters and found if misconduct occurred, remedy short of dismissal appropriate - With exception of summary suspension, investigation process generally fair - Alleged conduct not capable in circumstances of amounting to serious misconduct - Dismissal unjustified - UNJUSTIFIED DISADVANTAGE - Claimed denied opportunity to be heard prior suspension - Grievance not raised within 90 days - No application to raise grievance out of time - Grievance time-barred - However, given method suspension imposed unsatisfactory, matter considered globally in remedies - Community worker
Result: Application granted ; Reimbursement of lost wages ($5,712)(8 weeks) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Murphy v Steel & Tube New Zealand Ltd
12 Apr 2007, P Montgomery, CA 42/07, (8 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant involved in altercation with co-worker - Applicant struck co-worker causing injury - Both suspended while matter investigated - Company policy manual provided for immediate dismissal without warning or notice for serious misconduct - Respondent undertook thorough and unhurried inquiry - Respondent entitled to prefer evidence of witness even though applicants explanation plausible - Striking another employee capable of constituting serious misconduct - Applicant's defensive reaction probable - Evidence strongly suggested push on applicant by other employee of insufficient force to justify applicant's excessive reaction even in self defence - Respondent consulted with union regarding possible remedies before coming to decision - Respondent considered issues and information and judged there had been fight - Decision maker had reason to make judgment in light of company policy - Dismissal justified
Result: Application dismissed ; Costs reserved
Murray v Lumsden Accommodation Ltd
23 Oct 2007, H Doyle, CA 123/07, (17 pages)
UNJUSTIFIED DISADVANTAGE – Respondent viewed security camera footage from bar – Believed applicant gave away drinks – Also showed her returning after hours with male customer and giving him company shirt – Handed applicant suspension letter when she returned from leave – Fair and reasonable employer, knowing applicant just returned from holiday and unaware of respondent’s concerns, would have discussed justification for suspension with her – Suspension substantively justified, but manner applicant advised of it unjustified – Unjustified disadvantage – UNJUSTIFIED DISMISSAL - Misconduct - After viewing video, applicant accepted some drinks not put through till – Said tired and apologised - Till tapes not provided to applicant – Not enough for respondent to say information never requested – Till tapes and security footage no longer available – Applicant not asked whether friendly with customer she gave drinks and shirt to – Claimed left note saying would pay for shirt but none found - Respondent required to reach conclusion as to whether not charging deliberate or oversight, not simply conclude applicant gave away items – Failure to follow disciplinary procedures in employment agreement – Applicant not given opportunity to comment on respondent’s conclusion or decision to dismiss – Inadequacy of investigation meant fair and reasonable employer would, at time of dismissal, have concluded misconduct and could have given warning, not serious misconduct and summary dismissal – Unjustified dismissal – Remedies – Applicant had also advised bar tab from another hotel should be sent to respondent – Irregular and no authorisation for this – Fair and reasonable employer would have warned applicant about conduct – Very real possibility employment would not have continued beyond trial period – Lost wages limited to remainder of trial period – Contributory conduct 60 percent - Manager
Result: Application granted ; Reimbursement of lost wages ($2,462.98 reduced to $985.20) ; Compensation for humiliation etc ($400)(Disadvantage) ; ($9,000 reduced to $3,600)(Dismissal) ; Costs reserved
Murrie v Higher Ground Drug Rehabilitation Trust
30 Apr 2007, J Scott, AA 130/07, (12 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent provided recovery programme to assist residents maintain abstinence from alcohol and drug use - Drug free policy cornerstone of programme - Drug free criteria same for recovering staff - Applicant attended programme before being employed - Applicant informed respondent contemplated going on anti-depressants - Respondent suggested applicant take herbal remedy - Respondent later advised by another staff member that applicant on psychotropic medication - Applicant aware of requirement to abstain from "mood or mind altering drugs" - Breach of Code of Ethics amounted to serious misconduct - Respondent recognised not situation where summary termination justified - Respondent set out process where applicant could achieve compliance over time - Applicant failed to address fundamental concern of respondent - Refused to take part in disciplinary proceedings - Given applicant's long association with respondent, absence of current contract which specifically spelt out breach and consequences not barrier to respondent’s decision - Applicant understood policy of abstinence both as client and employee - Applicant admitted serious misconduct - Given principle at stake, respondent had no choice but to terminate employment - No evidence to support claim of discrimination on grounds of disability - Applicant dismissed because in breach of contract and refused to take part in disciplinary proceedings - Dismissal justified - UNJUSTIFIED DISADVANTAGE - Applicant not disadvantaged when not offered work above contracted hours - No contractual entitlement to additional hours - Counsellor
Result: Application dismissed ; No order for costs
Plimmer v Hawksbury Community Living Trust
28 Mar 2007, P Montgomery, CA 31/07, (6 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Previously mediation between parties - Applicant told colleague who attended, and that manager cried during mediation - Respondent saw this as breach of confidentiality and alleged relationship irreparably damaged - Applicant summarily dismissed - No prohibition on disclosing who attended mediation or reactions of participants - No evidence applicant disclosed discussions or details of what agreed - Confidentiality of mediation not breached - Participation of manager in disciplinary investigation in any role other than as witness breached principles of natural justice - Also failed to interview colleague about disclosure - Investigation tainted by bias and unfair to applicant - Applicant's conduct injudicious but not a breach of statute or serious misconduct - Dismissal unjustified - Senior support worker
Result: Application granted ; Reimbursement of lost wages ($11,322)(17 weeks) ; Compensation for humiliation etc ($12,000) ; Costs reserved
Rowe v Toll NZ Consolidated Ltd
12 Apr 2007, M Urlich, AA 107/07, (10 pages)
UNJUSTIFIED DISMISSAL - Summary dismissal - Serious misconduct - Applicant diagnosed with depression and issued medical certificate stating unfit for work - Respondent's doctor agreed with diagnosis - Respondent implemented ongoing monitoring of applicant upon return to work - Respondent alleged Signal Passed At Danger category A ("SPADA") in respect of train applicant driving - Meeting called to gather information - Applicant told respondent after meeting had been involved in SPADA - Claimed did not report incident because thought had "gotten away with it" - Formal disciplinary meeting where allegations of serious misconduct outlined - Applicant not given investigation report because policy at time not to provide one - Respondent claimed report contained information not intended for general distribution - Applicant did not want to explore medical retirement - Respondent claimed raised final written warning as bridge to medical retirement - Respondent claimed no evidence of medical condition which rendered applicant incapable of performing duties - Respondent failed to specify incident, explain purpose of meeting or organise representative - Breach of fair treatment policy not to alert applicant of right to have representative present - No reasonable basis to conclude applicant denied allegation SPADA occurred - Documents should have been provided to applicant - Respondent also failed to fairly consider potential impact of ill health on incident - Remedies - Dismissal unjustified - Lost wages reduced for contributory conduct - Train driver
Result: Application granted ; Reimbursement of lost wages (9 months)(Reduction for contribution) ; Compensation for humiliation etc ($15,000) ; Costs reserved
Sheriff v R.W. & A.C. King Ltd
18 May 2007, L Robinson, AA 153/07, (5 pages)
UNJUSTIFIED DISMISSAL - Summary dismissal - Serious misconduct - Applicant retrieved one of two deliveries from respondent's depot on shift - Manager unsuccessfully attempted to contact him - Respondent's director went to delivery address to raise matter with applicant - Differing accounts of what occurred - Applicant claimed director blocked his truck, yelled at him, and told him to get out of truck - Director's evidence preferred - Director instructed applicant to pick up other delivery, but he refused - Claimed had completed assigned delivery for working day and was going to appointment - Informed applicant because refused to follow instructions, was dismissed - Applicant drove away - Director issued instructions within applicant's working hours - Entitled to direct applicant to make delivery - Applicant refused to comply with lawful and reasonable instruction - No need for further enquiry or investigation in face of applicant's direct and open defiance - Applicant's deliberate refusal to comply evidenced an intention not to be bound by terms of employment agreement - Repudiatory conduct - Respondent entitled to regard agreement at an end - Actions and how it acted those of fair and reasonable employer - Dismissal justified - Delivery driver
Result: Application dismissed ; Costs reserved
Thomson v Winger Motors Ltd
15 Jan 2007, J Wilson, AA 7/07, (6 pages)
UNJUSTIFIED DISMISSAL - Summary dismissal - Serious misconduct - Reinstatement sought - Dismissed for alleged bullying and intimidation of employee ("G") - Applicant told director, but not immediate manager, under personal stress - Other manager claimed saw applicant speak to G in "out of control" way - G complained verbally abused - Investigation carried out - Manager claimed difficult to get information from applicant at investigation meeting and that minimised his behaviour - Respondent interviewed other staff - Staff witnessed applicant shouting and aggressive toward G - Given full and proper opportunity to respond to information, and resprested - Investigation and disciplinary processes those of fair and reasonable employer - Applicant disputed seriousness of behaviour, but did not dispute its occurrence - Respondent took into account seriousness of behaviour, effect on staff, applicant's previous excellent work record, and likelihood of recurrence - Having undertaken full and fair inquiry, respondent justifiably concluded serious misconduct - Manager gave evidence left with no alternative but to dismiss - Although another employer might have continued applicant's employment, dismissal within range of options - Authority did not take from authorities should overturn a dismissal decision merely because employer could have decided not to - Interpretation assumed fair and reasonable employers should be lenient - Not giving another chance did not make dismissal decision unreasonable, unfair, or unjustifiable - Respondent considered all circumstances when reaching dismissal decision - Dismissal justified - Sales manager
Result: Application dismissed ; Costs reserved
Tufuga v Sleepyhead Manufacturing Company Ltd
23 Mar 2007, P Montgomery, CA 28/07, (7 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant dismissed for removing company property without authorisation - Reinstatement sought - Removal of property serious misconduct under employment agreement - Senior co-worker ("T") saw applicant load bed panels into vehicle and questioned whether authorised to take them - Told needed permission and applicant confirmed he understood - At end of shift T saw applicant drive away with panels and failed to stop him - Management advised - Union delegate told of situation and that meeting to take place - Applicant told of seriousness of matter and dismissal possible - Delegate represented applicant at meeting - Delegate did not act as agent of respondent, and not directed by it to represent applicant - Satisfied applicant accepted delegate's offer to represent him - Aware of policy regarding removal of property without authorisation - On two previous occasions, applicant sought and was granted permission to take property - Blatant disregard of policies - When advised dismissed applicant claimed returned panels - Evidence failed to show panels returned - English applicant's second language - No evidence applicant confused or did not understand at meeting - Language difficulties not significant factor in investigation - Full and fair inquiry and investigation process - Fair and reasonable employer would have dismissed - Dismissal justified
Result: Application dismissed ; Costs reserved
Waikawa & Anor v AFFCO New Zealand Ltd
26 Apr 2007, PR Stapp, WA 60/07, (9 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Constructive dismissal - First applicant ("TW") dismissed and second applicant ("LM") resigned after respondent alleged involved in unauthorised possession and distribution of company product - Private investigator engaged to investigate theft - TW claimed told by investigator respondent after big thieves not little ones, so admitted taking some meat - Investigator denied given undertaking - No immunity given to TW - Respondent took admission and information from two informants into consideration and dismissed TW - LM responded to allegation took shoulders by admitting took some lamb racks, to show informants incorrect - Suspended but resigned before re-interviewed - Applicants submitted admissions obtained under false pretences or entrapment - Neither applicant entrapped - Not foreseeable LM would resign before respondent had decided to rely on admission - No constructive dismissal -TW's admission took meat for personal use fell short of meeting allegation relied upon by respondent - Admission did necessarily mean TW involved in larger issue of organised theft - Respondent relied on personal possession of meat without investigating it separately as fair and reasonable employer would - Without admissions, investigation into applicants wholly inadequate - Respondent could not justify dismissal on basis of untested information from unnamed informants provided by investigator - TW's dismissal unjustified - Remedies - Contributory conduct 100 percent - Reinstatement not appropriate
Result: Application dismissed (LM) ; Application granted (TW) ; Costs reserved
Wirihana v Alawaya Cartage Ltd
14 Mar 2007, Y Oldfield, AA 69/07, (6 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Serious misconduct - Applicant's truck hit parked car on delivery run - Applicant claimed unfair unpaid suspension forced him to resign - Applicant initially told respondent he was driving at time - Subsequently admitted allowed assistant "off-sider" to drive truck, had accident, and did not stop at scene - Knew assistant did not have licence - Applicant claimed agreed to continue story was driving at time of accident, but changed mind - Managing director ("MD") instructed applicant be suspended and not paid final pay until MD returned from holiday - Applicant resigned - Employment agreement stated insurance excess recoverable from applicant if damage resulted from negligence or wilful act - Suspension made so matter could be dealt with MD when returned - Not reasonable to make applicant wait three weeks without wages without knowing fate - Entitled to fair, complete process and timely answer - Unpaid suspension serious breach of employment agreement - Untenable for applicant to remain at respondent - Constructive dismissal - Dismissal at time of suspension could not have been justified - Not put to applicant that actions serious misconduct or might justify dismissal - Respondent did not have all relevant information - Actions not those of fair and reasonable employer - Remedies - Applicant permitted unlicenced driver to take wheel of vehicle in his care - Contributory conduct 50 percent - UNJUSTIFIED DISADVANTAGE - Applicant claimed disadvantaged when pressured to lie about accident - Supervisor sanctioned suggestion applicant lie about accident - Sanctioning amounted to unjustified action - Unjustified disadvantage - No contributory conduct - ARREARS OF WAGES - Applicant claimed payment in lieu of notice - Entitled to payment in full in accordance with employment agreement - Truck driver
Result: Application granted ; Arrears of wages ($1,530)(Notice) ; Reimbursement of lost wages ($3,968.99 reduced to $1,984.44) ; Compensation for humiliation etc ($6,000 reduced to $3,500)(Unjustified dismissal) ; ($500)(Unjustified disadvantage) ; Costs reserved
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