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Dairy workers unjustifiably dismissed, but no pay out ordered due to fabricated CV


A couple who were fired, in part, because their arguing was affecting the cows they were milking will get no compensation for their unjustified dismissal because they fabricated their CV. 

The Employment Relations Authority (ERA) released its decision this month detailing the fall out between Daniel and Loretta Smith and their employer Stuart Muir. 

The ERA ruled the Smiths were unjustifiably dismissed, but ruled no compensation should be awarded.
DOMINICO ZAPATA/STUFF

The ERA ruled the Smiths were unjustifiably dismissed, but ruled no compensation should be awarded.

Daniel Smith was employed by Muir as second in charge at his Waiuku dairy farm from early June 2017 until 14 August 2017.

Muir hired the pair after checking their curriculum vitae which showed they had worked for four farms between 2008 and 2017.

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The Smiths had provided a contact name and phone number for each of the farms. Muir tried to contact the previous employers but was only able to reach one – known as Mr R – who gave positive feedback for the couple, the ERA decision says. 

Muir interviewed the pair, discussing the salary and benefits that would be offered, the requirement that they provide their own quad bike, and that their employment would be subject to a 90 day trial period under the standard Federated Farmers employment agreement. 

The pair signed the agreement, with Muir agreeing he would buy a farm bike for the couple and deduct $250 per week from their pay packet until the bike was paid off.

However, shortly after the Smiths started working problems began to arise. Muir noted the couple were regularly finishing work early, having long breaks and starting late, according to the ERA decision. 

Muir told the ERA he had talked to the pair about their lateness – something they later denied.

Following that conversation, Muir reportedly raised concerns with Daniel Smith that he was distressing the animals with his aggressive approach towards them. 

In the weeks following, Muir found out some of the information on their CV may have been inaccurate. The information came via Muir’s son who attended the local school with the Smiths’ son.

According to the ERA decision, the Smiths’ son was saying at school he had attended about 20 different schools and had lived and worked in Otaua the previous year – information which was inconsistent with the Smiths’ work history. 

Muir tried to contact Mr R again to discuss his concerns. He was unable to contact him. He then asked the Smiths how he could contact Mr R and was told he was not contactable as he was visiting a sick brother in South Africa. 

The Smiths later denied telling Muir this. They claimed they had told him that Mr R had sold his farm and moved to South Africa which is why they had moved farms.

When the calving season began the relationship deteriorated further. 

The Smiths had asked for some time off work, which Muir declined due to the workload on the farm. 

This resulted in a heated exchange of text messages between the pair. 

The Muirs had a meeting with the Smiths in which they raised they concerns again – including how their arguing was affecting the cattle. 

In late July, 2017, Muir told the Smiths he was evoking the 90 day trial clause. According to the ERA, the Smiths responded angrily, swearing at him and telling him they would “see him in court.”

In early August, Muir made contact with Lloyd Barriball, who had previously employed the Smiths. 

Barriball said they had been dismissed under a 90 day trial period for being unreliable, verbally abusing each other and him, causing distress to his animals and not undertaking tasks as instructed. 

Following the conversation, Muir contacted the Smiths and advised them they were gong to be instantly dismissed due to lying on their CV. 

The case was taken to the ERA who ruled Muir had unjustifiably dismissed the couple because he had not followed the correct process.

As part of their decision, the ERA ruled the Smiths had signed their contract after they had started working, meaning the 90 trial clause was not valid. 

“Mr Muir did not advise the Smiths of their rights in regard to the disciplinary process he was undertaking including the consequences of any adverse finding,” the decision read.

“…Mr Muir did not outline all of the allegations against Mr and Mrs Smith for them to consider and respond to. The only concern raised whilst Mrs Smith was present was about Mr Smith’s attitude. Whilst some of Mr Muir’s concerns were put to Mr Smith, Mr Muir did not raise the issue of the misrepresentations the Smiths were alleged to have made on their curriculum vitae.

“He said this was because they had found out the information through the Smiths’ son and did not want to ‘land him in it’.

“Mr Muir did not give Mr and Mrs Smith a reasonable opportunity to respond to the allegations. They had no opportunity to prepare a response prior to the meeting and were not afforded with another opportunity to respond before the decision was made to terminate their employment.” 

However, the ERA also concluded the Smiths had falsified details on their CV. The ERA ruled it was likely the Smiths had worked at multiple dairy farms which were not mentioned on their CV. 

“By falsifying their curriculum vitae the Smiths obtained a job that they would not otherwise have been employed to undertake and that, ultimately, they did not have the skills to perform. Their conduct was disgraceful,” the decision read. 

The ERA ruled it would be unconscionable for them to reward the Smiths’ “egregious” conduct by an award of damages.

“The Smiths’ were unjustifiably dismissed but no award of remedies is ordered.”

The ERA ruled costs were reserved and the parties encouraged to resolve the issue between themselves.

Source: stuff.co.nz


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