In July 2004, Mr A and his wife joined a group of couples saving to travel together to Germany for the World Cup. The syndicate had agreed rules that meant if you withdrew you could only recover your contributions and would forfeit your share of additional funds through interest and fund-raising.
Shortly before joining the syndicate, Mr A spoke to his manager about the prospect of getting leave to go to the Cup. Mr A said his boss said “I can’t see that being a problem” and when he reminded his manager of his plan in January 2005, he was told “you won’t be able to take nine weeks leave” which was how much holiday leave he had accrued. Mr A said he told his manager he planned only to take six weeks.
The Manager accepted they had a discussion in July 2004 about using accumulated leave to go to the Soccer World Cup, but insisted no specific plans were mentioned. The system of leave operated by the employer was that workers submitted a form to their managers for consideration. Mr A didn’t put in his form for annual leave until December 2005.
The employer said Mr A could not take leave. Having failed to achieve agreement, Mr A told the boss he intended to take holidays in any event. He was told that going ahead with unauthorised leave would be seen as a wilful breach of his employment agreement and would result in disciplinary action for serious misconduct. He went anyway. On his return to work, Mr A was dismissed.
The Authority had no difficulty in finding that the employer had not unequivocally committed itself to agreeing to the Applicant taking extended leave in 2006 and Mr A’s deliberate defiance of the employer’s refusal to grant leave was clearly capable of being considered as serious misconduct. Further, there was a fair process carried out by the employer. The Applicant had clear notice of the meetings and the issues, and was able to secure professional advocacy from his union organiser throughout.
The Authority found the employer’s actions in refusing the leave and dismissing Mr A were justified and the personal grievance was dismissed.
I will be giving a free seminar on employment law on the evening on 1 October. E mail Kendyl at Venture Southland to book your place (kendyl@venturesouthland.co.nz) or call 211 1400.
