| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 55 |
| Hearing date | 20 Dec 2011 |
| Determination date | 16 February 2012 |
| Member | J Crichton |
| Representation | N Farrands ; R Macintyre |
| Location | Auckland |
| Parties | Rix-Trott v The Freight People Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Poor performance – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably dismissed and disadvantaged by respondent – Respondent claimed applicant’s employment subject to 90 day trial period – Applicant claimed first document entered into by parties was employment agreement – Respondent made provision in document for trial period and to assist applicant to purchase vehicle with loan – Authority not satisfied document was employment agreement – Found document later entered into by parties was employment agreement which also referenced trial period and finance for vehicle – Applicant purchased vehicle using funds referred to in documents – Respondent met with applicant to discuss concerns about efficacy of applicant’s work – Respondent convened another meeting after failed to see improvement in applicant’s work – Parties agreed to addendum to employment agreement – Applicant claimed bullied into signing addendum and not given opportunity to seek legal advice – Respondent claimed applicant not bullied into signing addendum and applicant’s suggestion to reduce salary by 50 per cent – Respondent dismissed applicant and requested repayment of loan – Found respondent failed to stipulate in documentation that applicant could be dismissed during trial period and not entitled to bring grievance in respect of dismissal – Found applicant not employed on 90 day trial period and could raise grievance – Applicant claimed disadvantaged by respondent’s failure to allow reasonable follow up of opportunities for new clients – Applicant claimed bullied by respondent – Found applicant not persuasive witness and various allegations not established – Found applicant architect of own misfortune – Found no impropriety in relation to agreement to addendum – No disadvantage – Found respondent did not comply with good faith obligations in dismissing applicant – Dismissal unjustified – REMEDIES – No contributory conduct – Found respondent should have dealt with applicant’s performance issues by managing applicant’s performance or having trial period that complied with law – $7,500 reimbursement of lost wages appropriate – $3,000 compensation appropriate – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought repayment of loan advanced to applicant for purchase of vehicle – Found respondent advanced loan to applicant in employment context – Found implied term of loan agreement that loan would be repaid at conclusion of employment – Applicant to pay respondent $10,340 – Respondent sought repayment of personal fuel costs incurred by applicant – Applicant to pay respondent $340 |
| Result | Applications granted (unjustified dismissal) (counterclaim)(recovery of monies) ; Reimbursement of lost wages ($7,500) ; Compensation for humiliation etc ($3,000) ; Recovery of monies ($10,340)(loan) ($340)(fuel costs) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s67A;ERA s67B;ERA s120 |
| Cases Cited | Smith v Stokes Valley Pharmacy (2009) Ltd [2010] ERNZ 253 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Auckland_55.pdf [pdf 59 KB] |