| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 9 |
| Hearing date | 23 Sep 2010 |
| Determination date | 16 January 2012 |
| Member | M B Loftus |
| Representation | P Tucker ; D Johannink |
| Location | Christchurch |
| Parties | Sullivan v Johannink Investments Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor performance – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant not dismissed and employment ended on applicant’s initiative – Applicant issued warning which related to concerns applicant ignoring instructions, being tardy in housekeeping and failing to properly complete monthly store reports – Applicant issued second warning which related to allegations of unauthorised absence, tardy approach to banking protocols and communicating with managers in abusive manner – Applicant issued final warning which set out various concerns about applicant’s poor performance including communicating with senior staff in abusive manner – Applicant given letter which stated applicant’s performance had improved but alleged applicant had again been abusive to senior staff – Applicant denied had been abusive to senior staff – Applicant claimed relationship with respondent retail supervisor (“S”) deteriorated after settlement of grievance and was S who was rude and aggressive – Respondent retail supervisor (“M”) claimed when approached applicant about staff roster issue applicant acted in abusive manner – Applicant left premises after confrontation which was before shift had ended – M informed applicant that resignation accepted and someone had been sent to collect applicant’s keys – Applicant informed M that had not resigned – Applicant contacted respondent principal (“J”) and claimed J said to take sick day and return to work next day – J denied had told applicant to take sick day or return to work but only advised that would speak to M and contact applicant afterwards – Applicant claimed told by J that had resigned and if set foot on property would be sacked – J claimed told applicant that resignation was accepted – J accepted applicant stated would return to work – Authority found employer with knowledge J had should not have accepted that resignation had been tendered – Found reasonable employer would have allowed cooling down period and then discussed matter with employee – Found J seized opportunity to get rid of applicant – Found applicant dismissed – Found J should have attempted to confirm situation before preparing applicant’s final pay – Found respondent did not raise concerns or make real attempt to ascertain applicant’s views about what occurred – Dismissal unjustified – REMEDIES – No contributory conduct – Found although likely to be some substance behind respondent’s concerns about inappropriateness of applicant’s behaviour, difficult to conclude that applicant contributed in material way to respondent’s failure to approach matter in fair and proper way – Applicant obtained part time employment though earned under half amount had enjoyed while at respondent – Found respondent could not be held accountable for new employer’s decision to reduce applicant’s hours – $5,053 reimbursement of lost wages appropriate – Applicant claimed suffered financial stress and was extremely distressed and emotional – Found financial issue temporary and subsequently addressed and medical problems arose well before dismissal – $3,000 compensation appropriate – Manager |
| Result | Application granted ; Reimbursement of lost wages ($5,053.25) ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s124;ERA s128(2);Interpretation Act 1999 s4;Interpretation Act 1999 s7 |
| Cases Cited | Boobyer v Good Health Wanganui Ltd unreported, Goddard CJ, 24 February 1994, WEC3/94;Kostic v Dodd unreported, Couch J, 11 July 2007, CC14/07 |
| Number of Pages | 14 |
| PDF File Link: | 2012_NZERA_Christchurch_9.pdf [pdf 69 KB] |