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Alexander v The Home Centre Ltd t/a Marlborough Mitre 10 Home and Trade
24 Jan 2007, P Montgomery, CA 6/07, (9 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed primarily for absenting herself for two days and deceiving employer over reasons for absence - Matter to be placed in context of discovery of applicant's convictions for benefit abuse - Factual matrix of case involved deceit and actions such as using mother as conduit of messages to avoid scrutiny - Applicant's behaviour struck at heart of employment relationship and capable of amounting to serious misconduct - But for culpable deceit, would likely have found absence fell short of serious misconduct - Also dismissed for failing to notify respondent of subsequent departure from premises and reasons for it - Not serious misconduct - Applicant criticised respondent's conduct leading up to dismissal - Earlier meetings confined to operational issue, not disciplinary - Respondent entitled to raise convictions at disciplinary meeting as inquiring into applicant's trustworthiness - However, disciplinary investigation seriously deficient - Applicant unable to put forward views and respondent failed to inquire when applicant raised issue relating to relationship with office manager - Fair employer would have inquired into allegation and what, if any, bearing it had on total issue - Dismissal unjustified - Remedies - Length of service taken into account when setting compensation - Contributory conduct 50 percent - Accounts clerk
Result: Application granted ; Compensation for humiliation etc ($5,000 reduced to $2,500) ; Reimbursement of lost wages ($1,880) ; Costs reserved
Ashton v PMP Print Ltd
27 Aug 2007, R Arthur, CA 104/07, (15 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Two years before Soccer World Cup applicant joined syndicate fundraising to attend - Respondent knew applicant in syndicate - Claimed discussed leave with manager who said "shouldn't be a problem" - Formally requested five weeks leave, but leave refused - Offered three weeks leave instead - Applicant had booked flights - Applicant went to Cup for five weeks - On return, dismissed for serious misconduct - Respondent did not unequivocally commit itself to applicant taking extended leave - Respondent's conclusion that applicant's suggested cover while on leave would not meet its business needs, not unreasonable - Respondent took reasonable steps to accommodate leave request - Refusal of leave justified - Did not amount to unreasonable withholding of consent to leave - Applicant's commitment to travel without confirming leave less than satisfactory, and lay at heart of problem - Statutory good faith obligations to be responsive and communicative lay equally with employee as with employer - Evidence did not support applicant's allegation refusal of extended leave was personal vendetta due to applicant's role as union delegate during strike action - Applicant's act wilful and deliberate act of disobedience - Clearly aware of consequences of actions in advance - Fair and reasonable employer would have considered it serious misconduct fatally undermining trust and confidence - No serious challenge to fairness of disciplinary process - Summary dismissal open to respondent - Dismissal justified - Senior engineer
Result: Application dismissed ; Costs reserved
Bell v Board of Trustees, Cambridge High School
14 Mar 2007, V Campbell, AA 70/07, (6 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed after spray-painted windscreen and side mirror of student's vehicle - Student complained and applicant called to meeting - Applicant claimed action justified because vehicle blocked emergency access to sports field - Claimed respondent's investigation unfair - Not advised dismissal possible consequence of disciplinary meeting - Respondent did not agree to having witnesses of incident at meeting - Applicant wanted to refute witnesses allegations he caused crack in windscreen and pushed gate into vehicle - Authority satisfied respondent did not consider applicant responsible those allegations - Enquiry focused on whether applicant contravened required standard of conduct in collective employment agreement when spray-painted vehicle - Spray-painting fell squarely within definition of vandalism - In circumstances, respondent correct in concluding actions serious misconduct - However, actions in dismissing without providing fair notice employment in jeopardy so unfair as to render dismissal unjustified - Dismissal unjustified - Remedies - High likelihood would still have dismissed applicant had he been advised dismissal possible - Significant blameworthy conduct - Applicant entitled to award for contribution to costs, but not other remedies - School groundskeeper
Result: Application granted ; Costs reserved
Brown v Leopard Coachlines Ltd
13 Mar 2007, H Doyle, CA 23/07, (11 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant dismissed for causing collision with co-worker ("X") on same bus route - Personal conflict between applicant and X - On balance of probabilities, applicant and X told to wait at designated point prior to avoid collisions, prior to accident - Disciplinary policy objective in Driver's Manual to "hopefully avoid" dismissal outcome - No opportunity to make submissions understanding dismissal possible outcome of disciplinary interview - No separation between interview and delivery of dismissal decision - No separate submission received about penalty - No opportunity to persuade respondent could be trusted in future - Fair and reasonable employer would have advised dismissal possible - Procedural unfairness - Fair and reasonable employer would not have concluded from evidence collision deliberate or intentional - Open to respondent to conclude accident avoidable if applicant had followed instruction to stop, and applicant at fault - Failure to stop about avoidability and carelessness rather than deliberate failure to followed instruction - Applicant's conduct less serious misconduct in manual, for which in most cases warning appropriate - Conduct did not justify serious misconduct requiring summary dismissal - Dismissal unjustified - Remedies - Contributory conduct 30 percent - BREACH OF CONTRACT - Damages - Respondent claimed applicant breached implied term of employment agreement when disobeyed instruction - Sought damages for costs of repairing buses - Not within contemplation, when collective employment agreement negotiated, employees personally liable for damage - Counterclaim dismissed - Loss of revenue claim abandoned - Bus driver
Result: Application granted ; Reimbursement of lost wages (Quantum to be determined less 30%)(Three months) ; Compensation for humiliation etc ($8,000 reduced to $5,600) ; Application dismissed (Counterclaim) ; Costs reserved
Coleman v Rotorua Forest Haulage Ltd
18 Jan 2007, K Raureti, AA 9/07, (7 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Dismissed for refusing to follow instructions and taking unauthorised leave - No written agreement - Applicant alleged parties agreed to pay rise after six months - Respondent claimed agreed only to review and when not given raise applicant stopped following instructions to load trailer onto empty truck - Gave applicant letter reminding him of instruction - Likely pay issue impacted on applicant's work - Loading trailer not as problematic as applicant described - Evidence did not show applicant received warning - Letter did not refer to warning or identify consequences of not carrying trailer - Applicant later took sick day - Claimed unable to contact respondent so got co-worker to cover shift - Respondent submitted had 24 hour contact number and applicant's arrangement jeopardised another contract - Suspended for unauthorised absence and refusing to carry trailer - Subsequent disciplinary meeting heated and unproductive - Dismissed next day - Premature to categorise absence as unauthorised without further enquiry - Other avenues open to determine genuineness of absence - No contractual right or immediate need to suspend - Before dismissal respondent required to clearly and unequivocally put instructions and consequences to applicant - Suspension and dismissal not actions of fair and reasonable employer - Dismissal unjustified - Remedies - Not carrying trailer and belligerence toward employer blameworthy conduct - Contributory conduct 40 percent - Applicant also claimed lost wages - Applicant had not accepted interim reinstatement because not original job and did not fit childcare arrangements - Respondent knew circumstances - Reasonably foreseeable applicant would decline offer - Driver
Result: Application granted ; Compensation for humiliation etc ($2,500) ; Reimbursement of lost wages ($3,292.80) ; Costs reserved
Field v Department of Corrections
2 Feb 2007, P Cheyne, CA 13/07, (8 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed following incident with inmate - Inmate claimed applicant punched him - Applicant denied assault and asserted self-defence - Preliminary investigation draft report recommended insufficient evidence for full investigation - Report implied two inmate witnesses unreliable - Manager found report unsatisfactory and contacted auditor for comments - Auditor criticised conclusions not supported by evidence - Involvement of auditor reasonable response - Manager and auditor reacted reasonably to what both saw as flaws in report - Final report recommended was sufficient evidence for full investigation - Authority found incident warranted full investigation - Allegation could not be rejected because came from possibly unreliable inmate - Fair and reasonable employer would have initiiated full investigation in circumstances - Even if applicant unfairly treated by intervention of manager and auditor leading to unfair report, did not follow dismissal unjustified - Other manager ("C") conducted full investigation - C not aware of manager and auditor's involvement - Involvement did not affect C's investigation or conclusions - Applicant had notes from preliminary investigation and opportunity to give reasons witnesses might have lied or mistaken - C not obliged to tell applicant disbelieved his denial of assault before expressing conclusion in final report - C gave applicant opportunity to explain and considered explanation without predetermination - Final decision-maker's role not to repeat investigation - Reasonable to convey to applicant his view about accuracy of C's findings - By recognising applicant likely to be dismissed, did not predetermine dismissal decision - Authority satisfied investigation full and fair - Subsequently added details of events made it difficult to accept applicant's version as reliable - Applicant's evidence not preferred in absence of direct witnesses - Given several inmates claimed saw applicant punch inmate, co-workers observations at scene after incident, and surrounding circumstances, reasonable employer would have found applicant punched inmate and dismissed him - Dismissal justified - Piggery instructor
Result: Application dismissed ; Costs reserved
Hamilton v B&D Doors Ltd, previously known as Dominator International Ltd and Ors
24 Jan 2007, J Crichton, CA 5/07, (9 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged performance targets set without consultation - No evidence of this and nothing wrong with targets being formulated - Also alleged demoted from managerial position - Respondent concerned about production - Decided another employee would take over management role temporarily - Respondent's claim applicant accepted plan not accepted - No written agreement - No legal basis for demotion - Unilateral change to terms and conditions - Irrelevant continued to receive full salary - No performance review or opportunity to improve - Applicant suspended after respondent received reports he changed machine settings - No general legal right to suspend - Demotion and suspension unjustified actions - UNJUSTIFIED DISMISSAL - Misconduct - Applicant denied changing machines - Respondent concluded applicant responsible and actions serious misconduct - Applicant summarily dismissed - Respondent's investigation and evidence not robust enough to ground dismissal - Authority not persuaded settings changed with sinister intent - Dismissal unjustified - PENALTY - Applicant sought penalty for failure to provide written employment agreement and demotion - Matters dealt with under personal grievance, no need for penalty - No lockout as alleged by applicant as respondent lacked required motive - No evidence second and third respondents incited, instigated, aided or abetted breach of applicant's employment agreement - Manager
Result: Application granted (Disadvantage, Dismissal) ; Reimbursement of lost wages ($11,250)(3 months) ; Compensation for humiliation etc ($1,000)(Demotion disadvantage) ; ($1,000)(Suspension disadvantage) ; ($5,000)(Dismissal) ; Application dismissed (Penalty) ; Costs reserved
Heath v Auckland City Council
26 Feb 2007`, L Robinson, AA 49/07, (14 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant worked at harbour marina - Dismissed for accepting boat cradles as gifts, and having them dismantled and transported from marina - Respondent invoiced under "purchase order" for dismantle work and transport hireage - Applicant believed cradles personal gifts from boat owners and brokers - Applicant claimed intended to pay for work and hired transport to assist other work - Claimed respondent mistakenly charged - Applicant made no attempt to change invoice into his name - Respondent reasonably rejected assertion applicant asked to be charged personally - Work should not have been authorised under purchase order - Respondent reasonably concluded applicant directed contractor, engaged to perform other work, to dismantle cradles under purchase order - Also reasonably concluded applicant hired transport under purchase order for own benefit - No authority to permit work to be done - Work undertaken for own benefit contrary to respondent's interests - Breach of duty of fidelity - Respondent justified in finding serious misconduct justifying summary dismissal - Applicant aware respondent to give decision at time dismissed - Respondent made sufficient inquiries - Investigation full and fair - Disparity of treatment claim rejected, given claimed instances never subject of disciplinary action - Dismissal justified - Recommendation respondent review and revise gift policies - Orders in earlier determination discharged - Marina manager
Result: Application dismissed ; Orders accordingly ; Costs reserved
Kingsford v Bodyworks Panel & Paint Ltd
14 Feb 2007, G J Wood, WA 26/07, (13 pages)
UNJUSTIFIED DISADVANTAGE - Applicant young, had dyslexia and Asperger's, prone to misunderstanding boundaries - Wages subsidised by Workbridge - Workplace culture "blokey" with constant use of swearing - Applicant not subject to ongoing physical and verbal abuse - Respondent took action when applicant assaulted by co-worker - Even though co-worker only warned did not mean applicant unsafe - First warning for behaviour and performance justified - Applicant not to be criticised for leaving work a little early after assaulted - Second warning for absence unfair - Warnings not challenged within 90 days - Relevant to dismissal claim - UNJUSTIFIED DISMISSAL - Serious misconduct - Whether dismissed or resigned - Applicant walked out stating he quit following altercation with owner - Owner angry and advanced at applicant in response to his wholly inappropriate approaches and abusive language - Respondent told within minutes resignation not to be relied on - Clear from respondent's subsequent actions it knew applicant did not really intend to resign - Requirements of natural justice not met - Breach of employment agreement which required disciplinary meeting - Even though owner directly involved in incident not case where behaviour so clear serious misconduct could be safely concluded without investigation - Dismissal unjustified - Remedies - Applicant went on sickness benefit - Not enough to mitigate lost wages - No excuse for abusing owner and already warned about behaviour - Must have known crossed line abusing boss - Substantially responsible for termination - Contributory conduct 2/3rds - Paint and panel
Result: Application dismissed (Disadvantage) ; Application granted (Dismissal) ; Compensation for humiliation etc ($6,000 reduced to $2,000)
Maher v Counties Manukau District Health Board
22 Jan 2007, M Urlich, AA 15/07, (7 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Poor performance - Restrictions placed on applicant's medical practice by Medical Council of New Zealand ("MCNZ"), including requirement for supervision - Respondent claimed restrictions meant applicant could not perform all required duties - Supervisors' concerned about applicant's skills - Allegations raised relating to prescription of medication - Investigation on all issues convened pursuant to employment agreement - Supervisors' reports provided to MCNZ and considered by respondent when deciding penalty - Applicant able to comment on reports before respondent reached conclusion - Appropriate to take supervisors' concerns into consideration - Reasonable to conclude concerns well founded and formed part of relevant circumstances at time of inquiry and dismissal - High level of trust resided in employee in applicant's position - In circumstances, failure to give acceptable explanation to prescription allegation would erode trust to serious degree - Dismissal justified - Medical officer special scale
Result: Application dismissed ; Costs reserved
Miles v Masterworld Ltd
19 Dec 2006, R Monaghan, AA 380/06, (6 pages)
UNJUSTIFIED DISMISSAL - Dismissed for abusive and intimidating conduct during altercation with delivery driver outside company premises - Respondent's director saw incident and spoke with driver - Director then rang applicant and told him 'gone too far' and would be dismissed - Despite being told not to return, applicant promptly went back to premises - Took issue with accusations and expressed adverse view of way company run - Applicant claimed dismissed for criticising management - Director sought to make number of allegations about applicant's conduct during employment, although stated would not have dismissed but for incident - Evidence of bullying behaviour by applicant - Applicant dismissed on phone, not after criticising management - Basic requirements of procedural fairness not met - Decision flawed if driveway incident immediate reason for it - If relying on historical concerns, failure to address them made decision even more flawed - Dismissal unjustified - Remedies - Applicant contributed very significantly to grievance - Driving inherently dangerous and confronting delivery driver unacceptable - If addressed properly, dismissal would probably have been justified - Contributory conduct 100 percent - PENALTY - Respondent claimed provided full employment agreement but no record of this - Signed job description did not comply with s65 Employment Relations Act 2000 - However, no penalty provision in s65 - Length of service not specified - Steel fabricator
Result: Application dismissed (Penalty) ; Application granted (Unjustified dismissal) ; Costs reserved
Mudge v Botany Plastics Ltd
16 Apr 2007, L Robinson, AA 109/07, (6 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Dismissed for theft - Applicant's evidence preferred - Invited to meeting without warning and told dismissed - Applicant asked why and told theft traced to her - When denied claim, respondent threatened to call police - Applicant made to write confession dictated by respondent - Applicant invoiced for amount outstanding and told to pay within three months or charges would be laid - Minimum requirements of procedural fairness not met - No convincing evidence of serious misconduct to justify summary dismissal - Applicant young - Real risk intimidated - Unsafe to rely on confession, investigation and conclusion of serious misconduct - Not actions of fair and reasonable employer - Dismissal unjustified - ARREARS OF WAGES - Respondent withheld severance pay to offset amount allegedly stolen - Arrears due and owing - Sales assistant
Result: Application granted ; Reimbursement of lost wages ($5,381.32) ; Compensation for humiliation etc ($8,000) ; Arrears of wages ($406.29)
Nelson v Meadow Mushrooms Ltd
15 Feb 2007, H Doyle, CA 16/07, (10 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant worked at respondent 19 years - After heated discussion, co-worker ("T") claimed applicant threw knife at him - Applicant apologised and claimed did not intentionally throw knife - Also claimed provoked because of supervisor's failure to deal with T, and his abusiveness and swearing - Applicant did not know where knife landed - Investigation found applicant threw knife in anger, and in breach of rules - Factual inconsistencies between accounts, including what applicant apologised for - Given full and proper opportunity to put forward not angry, and comment on witness accounts - Applicant's version of events essentially relied on and accepted where investigation found conflict whether she intended to throw knife at co-worker - Failure to provide conclusions did not render process unfair - Entitled to conclude applicant threw knife in anger, and actions not accidental - Applicant's explanation and diary entry of incident would have been different if knife "accidentally slipped" - Matters raised in unbiased and fair and reasonable manner - Applicant knew rules around handling of knives - Collective employment agreement ("CEA") stated could be no throwing of any object - Open to fair and reasonable employer to conclude serious misconduct in terms of CEA - In circumstances disparity of treatment between applicant and T irrelevant - No unfairness in almost immediate delivery of dismissal decision following final meeting - Against background of applicant's long service and good record, respondent felt actions gross breach of health and safety rules - Behaviour unacceptable for team leader, and damaged trust and confidence - Dismissal justified - Harvesting shed team leader
Result: Application dismissed ; Costs reserved
Pulu v Guardian Healthcare Group Ltd
9 Feb 2007, R Arthur, AA 27/07, (9 pages)
UNJUSTIFIED DISADVANTAGE - Name of respondent amended due to amalgamation and take over - Applicant given final warning after patient suffered broken leg as result of breach of lifting policy - Warning based on conclusions reasonably open to respondent - Warned failure to comply with lifting policy or any other breaches or performance concerns would result in dismissal - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Misconduct - Dismissed for being late to work in breach of house rules - Applicant admitted late, of no consequence exact date not determined - Employment agreement stated employee on final warning may be dismissed if "the misconduct or non-performance occurred again" - Use of "the" required repeat of same kind of behaviour subject of warning - Warning not able to override employment agreement - Respondent not able to say because warned when could have dismissed, could now make severe decision on minor offence - Authority not persuaded by allegation warning and dismissal to punish applicant for giving information to police investigation into co worker - Dismissal unjustified - Remedies - Serious breach of lifting policy and final warning important part of context - Late without good reason - Contributory conduct 25 percent - Caregiver
Result: Application dismissed (Disadvantage) ; Application granted (Dismissal) ; Reimbursement of lost wages (14 weeks reduced to 12 weeks) ; Compensation for humiliation etc ($3,000 reduced to $2,250) ; Costs reserved
Raman v Landmarx Development (NZ) Ltd
5 Mar 2007, V Campbell, AA 59/07, (4 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant alleged age discrimination but failed to provide evidence to support claim dismissed so younger worker could be employed - Authority not satisfied applicant subject to discrimination - Number of performance issues raised with applicant during employment, including failure to attend meetings to address performance issues - Respondent claimed applicant dismissed for failure to attend meeting as instructed - Unbeknown to respondent, applicant had been given approval to take time off work for another engagement - Instruction to attend disciplinary meeting lawful and reasonable - No investigation into why applicant did not attend, would have revealed reasonable explanation - Nothing to suggest applicant refused to attend - Fair and reasonable employer - Would not have dismissed in circumstances - Dismissal unjustified - Remedies - Applicant did not look for alternative work immediately as surgery scheduled in two months - Carpenter
Result: Application granted ; Reimbursement of lost wages ($7,203.30)(13 weeks) ; Compensation for humiliation etc ($2,500) ; Costs reserved
Ryan & Anor v Waipa Youth & Anor
7 May 2007, J Scott, AA 140/07, (17 pages)
UNJUSTIFIED DISADVANTAGE - Serious misconduct - Following an investigation, first and second applicants ("R") and ("P") suspended and dismissed for alleged disobedience, dishonesty, and using work time and materials for personal use - No provision to suspend in employment agreements - Respondent failed to establish situation existed to justify immediate suspensions - No opportunity to comment or inquiries made of applicants' prior to suspensions - P's suspension completely unfounded - Fair and reasonable employer would have consulted applicants before suspending - Wholly deficient process - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Except for two grounds of dismissal, misconduct not established - Applicants spent unreasonable amount of work time on personal and family activities - Evidence suggested R challenging and poor manager - R created files in names of real individuals without their knowledge or consent - Constituted misconduct going to heart of professional and ethical obligations as counsellor, and those to respondent - Respondent erred by not putting specific allegations about conduct to applicants - Entire dismissal process dogged by bias and predetermination - Actions not those of fair and reasonable employer - Dismissals unjustified - Remedies - Had investigation been fair, respondent would have concluded R guilty of serious misconduct justifying dismissal - No lost remuneration due to contributory conduct - Appalling process treated P as part of "job lot" with R - P's contributory conduct 25 percent - ARREARS OF WAGES AND HOLIDAY PAY - P's wages and holiday pay due and owing - COSTS - 3½ day investigation meeting - Respondent's failure to follow directions of Authority reflected in costs awards - Failures added to time and difficulties of investigation - Respondent refused to attend mediation - Matter should have been disposed of in two days - Respondent to pay $10,000 contribution to costs - Manager/Counsellor and Administrator
Result: Application granted (First applicant) ; Compensation for humiliation etc ($2,500)(Unjustified disadvantage) ; ($10,000)(Unjustified dismissal) ; Application granted (Second applicant) ; Reimbursement of lost wages (Quantum to be determined reduced by 25%)(3 months) ; Arrears of wages and holiday pay (Quantum to be determined) ; Compensation for humiliation etc ($3,500)(Unjustified disadvantage) ; ($12,500 reduced to $9375)(Unjustified dismissal) ; Costs in favour of applicants ($10,000)
Singh v Frucor Beverages Ltd
6 Mar 2007, K Raureti, AA 60/07, (10 pages)
RACIAL HARASSMENT - Applicant submitted no problems at work until new manager started - Raised four matters: isolated swearing incident, timing applicant while worked, distribution of Easter eggs and request for new overalls - Authority not satisfied swearing incident occurred - Even if did occur, not within s109 Employment Relations Act 2000 description of racial harassment - Other incidents did not separately or cumulatively amount to racial discrimination - UNJUSTIFIED DISADVANTAGE - First disciplinary meeting called to discuss high level of absenteeism - Respondent supportive of applicant's circumstances and formulated action plan to work with him - Following week applicant took two sick days - Second disciplinary meeting held and applicant issued with first written warning - Issuing warning so soon after committed to working together premature and unjustified - Disadvantaged as warning had significant impact of subsequent disciplinary meetings - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Misconduct - Dismissed for driving truck in manner that damaged property and for stacking pallets in potentially dangerous manner - Respondent considered these wilful or negligent acts that affected safety and quality - Prior to dismissal received final warning for hitting co-worker with truck - Affect of incorrect stacking overstated - Did not create serious hazard to all employees working in area - Matter escalated to one where dismissal possible because on final warning - Unlikely matters serious enough to warrant disciplinary meeting for serious misconduct in isolation - Unjustified first warning escalated every action after it - Dismissal unjustified - Remedies - Applicant sought reinstatement - Respondent large employer and on notice reinstatement sought - Reinstatement not impracticable, even though another employee appointed to position - Reinstatement ordered to former position, or one no less advantageous - Parties encouraged to attend mediation to assist return - Contributory conduct 30 percent - Storeman
Result: Application dismissed (Racial harassment) ; Application granted (Disadvantage and dismissal) ; Reimbursement of lost wages (4 months less earnings, reduced by 30%) ; Compensation for humiliation etc ($1,000 reduced to $700) ; Disbursements in favour of applicant ($70)(Filing fee)
Smith v Masterprint Ltd
27 Nov 2006, G Wood, WA 170/06, (10 pages)
ARREARS OF HOLIDAY PAY - Respondent bought business where applicant worked - Original owner responsible for holiday pay - Open to respondent to allow staff to take leave in advance without becoming liable for holiday pay - UNJUSTIFIED DISMISSAL - Serious misconduct - As part of investigation, director asked all employees to write in with any concerns about applicant - Allegations included failure to follow instructions, smoking on premises and abuse of co-workers, particularly females - Applicant not provided with statements or names of complainants - Denied most allegations - Not prepared to respond to abuse claim without further information - Respondent considered allegations made out and summarily dismissed him - Not actions of fair and reasonable employer - No reason why separate offences of misconduct meant processes in house rules should not be followed - Should have had opportunity to improve behaviour - Serious allegations required applicant to have as much information as possible - Should have disclosed names, limited number females in workplace and had sufficient detail been given likely able to be identified anyway - Respondent took into account failure to respond when dismissing, compounding unfairness - Also unjustified as dismissed for combination of allegations, and most serious allegation not made out - Some issues going on for years, in effect condoned by manager - Dismissal unjustified - Remedies - Applicant smoked in workplace despite knowing unlawful and being told to stop - Also failed to properly maintain machine and used rude and unpleasant language with female staff - Contributory conduct 35 percent - Printer
Result: Application dismissed (Arrears) ; Application granted (Dismissal) ; Reimbursement of lost wages ($7,680 reduced to $4,992) ; Compensation for humiliation etc ($10,000 reduced to $6,500) ; Costs reserved
Wills v Air New Zealand Ltd
12 Sep 2007, P Montgomery, CA 112/07, (14 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Respondent audited employees' internet use - Resulted in applicant's dismissal for excessive personal use - Authority found internet use policies disbursed in number of free-standing and partly contradictory documents - Applicant insufficiently inducted or briefed on internet use policies - Respondent did not require signed acknowledgment understood and agreed to terms of use before access given - Widespread uncondoned practice of sharing access and leaving computers logged on - Could not safely conclude applicant personally accessed or attempted to access objectionable sites, or be sure used internet for excessive personal use - Insufficient evidence applicant intended to gain access to objectionable sites or personally gained access to sites deliberately - Little evidence applicant's good record considered when dismissal decision made - Delay in dealing with allegations unreasonable - Notified under investigation over three months after four co-workers dismissed for similar conduct - Applicant entitled to rely on manager's earlier statement no other staff under investigation - Fair and reasonable employer would not have dismissed - Once put on notice of uncondoned practice, respondent failed to investigate it - Had it done so, more corrective and educational programme might have resulted in retention of applicant, and eradicated practice - Dismissal unjustified - Remedies - In light of failure to appropriately induct applicant, reinstatement ordered - Leave reserved if unable to agree on date applicant to resume employment
Result: Application granted ; Reinstatement ordered ; Reimbursement of lost wages ($8,048) ; Compensation for humiliation etc ($5,000) ; Leave reserved to return to Authority ; Costs reserved
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