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Kernahan v Review Publishing Co Ltd
17 May 2007, L Robinson, AA 152/07, (7 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Summary dismissal - Applicant allegedly threatened another employee ("F") during meeting - Employment agreement ("IEA") stated contract for 12 weeks with performance reviews, contract would then be renegotiated or terminated - Also contained trial period - F made written complaint applicant threatened her on two occasions - Applicant summarily dismissed for "gross misconduct" at subsequent meeting with decision-maker ("M") - M told applicant received complaint and eventually disclosed F's identity - Applicant requested details but told did not have to provide them - Agreement completely failed to meet s66 Employment Relations Act 2000 requirements - At applicant's election, employment was indefinite - Authority found complaint forced applicant's termination - Employment not fixed term - Applicant given no prior notice of matters to be discussed at dismissal meeting - Fair and reasonable employer would have told applicant matter serious and could lead to dismissal, given opportunity to take advice and have support person present - Not given particulars of complaint - M gave conflicting evidence whether had F's complaint at dismissal meeting - Unfair not in position to know precise allegations - Fair and reasonable employer would have given applicant opportunity to defend herself as matter of natural justice - M's notes of meeting suggested predetermination and corroborated evidence applicant given no time to object to dismissal decision - Not actions of fair and reasonable employer - Dismissal unjustified - Remedies - Applicant acted unprofessionally, aggressively and in hostile way towards F - Hostile behaviour led to grievance - Contributory conduct 25% - Period of alleged loss not restricted to any fixed term, and probationary period not relevant to question of reimbursement - Because of failure to mitigate loss and contribution, Authority declined reimbursement - Applicant in receipt of legal aid - Length of service 20 days - Account manager
Result: Application granted ; Compensation for humiliation etc ($3,000 reduced to $2,250) ; Costs reserved
Ottulugia v Roy Morgan New Zealand Ltd
7 Dec 2006, M Urlich, AA 373/06, (5 pages)
UNJUSTIFIED DISMISSAL - Whether fixed term employment - Collective employment agreement stated employment fixed term on "as and when required" basis, with each weekly engagement a separate period of employment - Section 66 Employment Relations Act 2000 obligations not met - Permanent employee - Serious misconduct - Summary dismissal - Applicant dismissed for hanging up on phone calls, and calling back a caller asking why had hung up on a call - At dismissal meeting Field Coordinator claimed told applicant she hung up on a caller, and handed applicant dismissal letter - Applicant claimed was called into meeting, handed dismissal letter, and was left to read it - By either account dismissal failed to meet accepted standards of a fair dismissal - Not given fair opportunity to answer allegation, give explanation, or have representative present - Not advised prior to meeting of its purpose, or told what allegations were or their factual basis - Evidence showed decision to dismiss made prior to disciplinary meeting - Dismissal unjustified - Remedies - Applicant did not deny allegations, and knew interviewers could not end calls without being authorised - Monitoring records showed conduct occurred - Blameworthy conduct - Serious flaws in disciplinary process denied applicant opportunity to provide explanation, which may have mitigated penalty received - Contributory conduct 50 percent - Length of service over two years - Call centre interviewer
Result: Application granted ; Reimbursement of lost wages (Two months)(Quantum to be determined, reduced by 50 percent) ; Compensation for humiliation etc ($2,000 reduced to $1,000) ; Costs reserved
Tandy v Hubert
19 Dec 2006, V Campbell, AA 381/06, (6 pages)
UNJUSTIFIED DISMISSAL - Misconduct - No appearance by respondent - Dismissed for allegedly failing to collect and transport goods - Applicant submitted respondent told him truck not running over weekend and to return to work on Monday - Claimed respondent rang on Saturday and asked him to wash truck - Applicant refused - Authority satisfied request for driver to wash truck and attend work on day off out of ordinary - Next day received message saying dismissed on notice for not collecting goods about two weeks earlier - Applicant denied leaving goods behind - In absence of investigation respondent in no position to determine misconduct occurred - Complete failure to adhere to procedural fairness - Respondent's actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - Lack of procedure meant not possible to ascertain contributory conduct - Length of service one year four months - Driver
Result: Application granted ; Reimbursement of lost wages ($4,500)(6 weeks) ; Compensation for humiliation etc ($2,500) ; Costs reserved
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