A forestry machine operator who took three days unauthorised leave was unjustifiably dismissed after his boss wrongly thought he had abandoned his position.

In 2014 Easter Monday and Anzac Day fell within the same week and machine operator Wayne Rush asked to take the three days between the public holidays as annual leave.

His boss Kerry Lupi of JSB Construction LTD (JSB) in Northland said there was too much work on during that period so none of their employees could take holidays on those days.

After a "heated discussion" Lupi said he would allow Rush to take the three days leave on the condition that he worked three Sundays before.


Rush had never worked on Sundays and had also accumulated enough annual leave - so he thought the conditional nature of the leave was unreasonable.

When Rush was absent from work on the three days, Lupi left a voicemail on his phone to inform him his employment had been terminated because he had abandoned his position.

Rush took a claim of unjustified dismissal to the Employment Relations Authority.

After Rush's workmates were informed that he had been dismissed from his role a truck driver decided to come forward to the company about verbal threats Rush allegedly made.

The truck driver told Lupi that Rush had said, in regard to Mr and Mrs Lupi, he would "stab them both in their beds while they slept and burn the house down on them", the ERA heard.

Lupi told the ERA he had visited a police station after he had been informed of the threat.

Some months after Rush's employment with JSB had ended Lupi requested a trespass notice be issued against Rush.

Rush's lawyer Barry Nalder said there had been no formal complaints reported to the Police against his client.

Member of the Authority Eleanor Robinson said Rush had been unjustifiably dismissed because Lupi knew that Rush had intended on being on annual leave for those three days.

"Whilst Mr Lupi may have considered that Mr Rush had taken annual leave without
authorisation, which may have given him grounds to embark upon a disciplinary
investigation, I consider that it was unreasonable in the circumstances for him to conclude Mr Rush intended to abandon his employment."

Robinson said there was no evidence that Rush had threatened Mr and Mrs Lupi since his dismissal and they had not taken any preventive action to protect themselves or their property from Rush until a year after his dismissal.

"I find that this indicates that they did not regard the allegations as sufficiently credible
as to take any preventive action."

Rush was awarded three months lost wages and holiday pay as well as $15,000 for the humiliation and stress he suffered after being dismissed.

The total remedies would be reduced by 30 per cent because Rush contributed to his situation by taking the annual leave days despite not working the conditional Sundays.

Read the full decision here: