Mr B. was dismissed (justifiably on the finding of the ERA)
because he turned a customer's car stereo up.
Koru Valet Parking and Air New Zealand Parking apparently count
its clients as "the cream of the New Zealand business
Apparently the "cream" of the New Zealand business
community told the employer that the changing of radio and air
conditioning settings in their vehicles by the employer's
employees adversely affected their trust in the company. The
employer then implemented a "don't touch" policy
after receiving a series of complaints about such actions, taking
the view that the actions created a threat to its business.
Mr B. was employed and received a copy of the employer's
rules at the commencement of his employment. The rules clearly
stated that unauthorised tampering with any fittings or accessories
in a customer's car was considered serious misconduct and the
penalty was instant dismissal
I cannot imagine a day that was so bad that I would complain to
a car valet service that somebody had moved the station from sports
radio to easy listening FM.
Neither can I conceive of a day where the changing of my air
conditioning would tip me over the edge.
That, however, is not the point. Apparently there are those in
the "cream" of the New Zealand business community who do
get uppity when this happens and the employer clearly had clients
who did complain about such things.
In October 2010 Mr B changed a customer's radio station and
there was a complaint. He got a warning.
On 26 May 2011 a customer was outside the airport terminal
waiting for his car to be dropped off. His car arrived with loud
music blaring from the stereo. The customer was very angry and
shouted at Mr B.
Mr B. was dismissed. In finding that the employer was entitled
to dismiss Mr B. the Authority member found that Mr B. breached the
"do not touch" rule, that Mr B. had transgressed before
and that Mr B. still did not seem to appreciate the importance of
the "don't touch" rule. The Authority member found
that the conduct met the level of serious misconduct and the
dismissal was justified.
This is a good lesson for employers. If you have Rules and if
you tell employees the consequences of breaking the Rules then - as
long as you follow a fair procedure - you can dismiss employees for
not following the Rules.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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