Arthur found that instruction breached the Holidays Act 2003. He said when leave is taken is a matter for agreement, and an employer cannot direct an employee to lodge a leave application so time off appears voluntary.
The director also alleged the worker pushed her. He denied touching her at all. Arthur held the allegation was not established, noting CCTV showed the director standing calmly at the counter moments later, and that the other director made no reference to any physical contact when the two men spoke on a recording made soon afterwards.
JITL cancelled the worker’s shifts from 3 to 15 December, pointing to the mental stress he had raised, before dismissing him on 9 December. Arthur found both actions unjustified. The cancellation amounted to a suspension imposed with no chance for the worker to comment. The dismissal followed no sufficient investigation and gave him no opportunity to answer the allegations, which by then included claims he had made other inappropriate comments and had copied store CCTV footage.
Arthur found JITL had weighed only one side of the 27 November confrontation, ignoring that its own director had made an unlawful demand.
The Authority reduced the worker’s remedies by 15 per cent for contributory conduct. He had admitted misleading the company about plans to seek a Canadian visa in order to delay taking leave, and the Authority found it more likely than not he had used discriminatory terms about social background. On one recording he told the other director: “I do not argue with women and I don’t prefer dealing with women”.