A Northland 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, the Employment Relations Authority heard.

After a "heated discussion", Mr Lupi said he would allow Mr Rush to take the three days leave on the condition that he worked three Sundays before. Mr 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 Mr Rush was absent from work on the three days, Mr 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 authority, which found in his favour.


After Mr 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 Mr Rush allegedly made. The truck driver told Mr Lupi that Mr 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.

Mr Lupi told the ERA he had visited a police station after he had been informed of the threat and some months after Mr Rush's employment with JSB had ended Lupi requested a trespass notice be issued against Mr Rush. Mr Rush's lawyer Barry Nalder said there had been no formal complaints reported to the police against his client.

ERA member Eleanor Robinson said Mr Rush had been unjustifiably dismissed because Mr Lupi knew that Mr Rush had intended on being on annual leave for those three days.

"While 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."

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

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

Mr 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 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.