| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 30 |
| Hearing date | 8 Mar 2012 |
| Determination date | 02 April 2012 |
| Member | M Ryan |
| Representation | R Webb ; P Cunningham (in person) |
| Location | New Plymouth |
| Parties | Tupe v Cunningham |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – Applicant employed to care for respondent’s wife (“X”) in respondent’s home – Respondent failed to file statement in reply – No written employment agreement (“EA”) – Applicant claimed respondent disagreed with way applicant performed some duties but continued to perform same way as believed knew best – Respondent claimed issues with applicant’s performance including lateness, behaviour towards respondent and work ethic – Applicant claimed respondent never warned applicant behaviour could result in dismissal – Applicant claimed parties had argument about how applicant cared for X and admitted swore at respondent and refused to carry out instructions – Respondent visited applicant next morning before due to start shift and suggested applicant take week off to consider if wanted to continue employment – Respondent gave applicant EA when returned to work and said could not start shift until signed EA – Parties agreed to new terms and conditions including applicant not bringing children to workplace – Respondent claimed found applicant’s children and mother at workplace next and “place was in a mess” – Respondent claimed X said applicant had criticised respondent when talked to members of community - Respondent gave applicant dismissal letter next day and refused applicant entry to workplace – Applicant claimed respected respondent’s privacy but became X’s friend during employment – Respondent claimed unhappy with influence applicant had on X – Authority found respondent did not advise applicant of performance concerns before dismissal and applicant had no opportunity to comment – Found respondent’s actions not those of fair and reasonable employer – Dismissal unjustified – REMEDIES – 70 per cent contributory conduct – Found applicant made no attempt to mitigate loss – Reimbursement of lost wages inappropriate - $600 compensation appropriate - PENALTY – Found as applicant inexperienced employer inappropriate to award penalty for failure to provide written EA when employment commenced - Caregiver |
| Result | Application granted(unjustified dismissal) ; Contributory conduct (70%) ; Compensation for humiliation etc ($600) ; Application dismissed(penalty); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s124;ERA s128(1)(b);ERA s128(2);Employment Relations Amendment Act 2010 s15 |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] NZEMPC 160;Argosy Imports Ltd v Lineham [1998] 3 ERNZ 976 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Wellington_30.pdf [pdf 59 KB] |